Section 1180-01-.10 - DISCIPLINARY GROUNDS, ACTIONS, CIVIL PENALTIES, SETTLEMENTS, AND SCREENING PANELS(1) Grounds and authority for disciplinary actions. The Board shall have the power to deny an application for a license or certificate to any applicant. The Board shall have the authority to suspend or revoke a license or certificate, reprimand or otherwise discipline by a monetary fine any licensee or certificate holder. Formal disciplinary proceedings before the Board shall comply with the Administrative Procedures Act, T.C.A. §§ 4-5-301, et. seq. The grounds upon which the Board shall exercise such power include, but are not limited to, the following: (a) Unprofessional, dishonorable, or unethical conduct;(b) Violation or attempted violation, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision of the Psychology Act or any lawful order of the Board issued pursuant thereto, or any criminal statute of the state of Tennessee;(c) Making false statements or representations, being guilty of fraud or deceit in obtaining admission to practice, or being guilty of fraud or deceit in the practice as a licensee;(d) Gross malpractice, or a pattern of continued or repeated malpractice, ignorance, negligence or incompetence in the course of practice as a licensee or certificate holder;(e) 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 as a licensee or certificate holder;(f) Willfully betraying a professional secret;(g) The advertising of Psychologist, Senior Psychological Examiner, Psychological Examiner, or Certified Psychological Assistant practice in which untrue or misleading statements are made, or causing the publication or circulation of fraudulent advertising relative to any disease, human ailment, or condition;(h) Willful violation of the rules promulgated by the Board to regulate advertising by practitioners who are under the jurisdiction of such Board;(i) Conviction of a felony, conviction of any offense under state or federal drug laws, or conviction of any offense involving moral turpitude;(j) Making or signing in one's professional capacity any certificate that is known to be false at the time one makes or signs such certificate;(k) Offering, undertaking, or agreeing to cure or treat a disease, injury, ailment or infirmity by a secret means, method, device or instrumentality;(l) Giving, receiving, or aiding or abetting the giving or receiving of rebates, either directly or indirectly, for referrals of business or patients;(m) Engaging in practice as a licensee or certificate holder under a false or assumed name, or the impersonation of another practitioner of a like, similar or different name;(n) Engaging in practice as a licensee or certificate holder when mentally or physically unable to safely do so;(o) Violation of the continuing education provisions of these rules;(p) Violation of the scope of practice statutes T.C.A. §§ 63-11-201 through 63-11-206; or(q) Disciplinary action against a person licensed, certified, registered, or permitted to practice psychology by another state or territory of the United States for any acts or omissions which would constitute grounds for discipline of a person licensed in this state. A certified copy of the initial or final order or other equivalent document memorializing the disciplinary action from the disciplining state or territory shall constitute prima facie evidence of violation of this subparagraph and be sufficient grounds upon which to deny, restrict or condition licensure or renewal and/or discipline a person licensed or certified in this state.(2) Upon a finding by the Board that a Psychologist, Senior Psychological Examiner, Psychological Examiner, or Certified Psychological Assistant has violated any provision of the Tennessee Psychology Act (T.C.A. §§ 63-11-201, et seq.) or the rules promulgated pursuant thereto, the Board may take any of the following actions separately or in any combination which is deemed appropriate to the offense: (a) Advisory censure. This is a written action issued for minor or near infractions. It is informal and advisory in nature and does not constitute a formal disciplinary action.(b) Formal censure or reprimand. This is a written action issued for single occurrence and less severe violations. It is a formal disciplinary action.(c) Probation. This is a formal disciplinary action which places a Psychologist, Senior Psychological Examiner, Psychological Examiner, or Certified Psychological Assistant on close scrutiny for a fixed period of time. This action may be combined with conditions which must be met be- fore probation will be lifted and/or which restrict the individual's activities during the probationary period.
(d) License or certificate suspension. This is a formal disciplinary action which suspends the right to practice for a fixed period of time. It contemplates re-entry into practice under the license or certificate previously issued.(e) Revocation for cause. This is the most severe form of disciplinary action which removes an individual from the practice of the profession and terminates the license or certificate previously issued. The Board, in its discretion, may allow reinstatement of a revoked license or certificate upon conditions and after a period of time which it deems appropriate. No petition for reinstatement and no new application for licensure or certification from a person whose license or certificate was revoked shall be considered prior to the expiration of at least one (1) year from the date of entry of the order unless otherwise stated in the Board's revocation order.(3) 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 or certificate holder petitions, pursuant to paragraph (4) 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.(4) 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 or uncertified 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; or2. 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; or3. 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 or certificate 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:(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 1200-10-1-.11.(5) Order Modifications - This procedure is not intended to allow anyone under a previously issued disciplinary order, including an unlicensed or uncertified 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(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 1200-10-1-.11.(6) Civil penalties. (a) Purpose. The purpose of this paragraph is to set out a schedule designating the minimum and maximum civil penalties which may be assessed pursuant to T.C.A. § 63-1-134.(b) Schedule of civil penalties. 1. A "Type A" 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 willful and knowing violation of the Psychology Act or rules promulgated pursuant thereto, to such an extent that there is, or is likely to be, an imminent, substantial threat to the health, safety and welfare of an individual patient or the public. For purposes of this paragraph, willfully and knowingly practicing as a Psychologist, Senior Psychological Examiner, Psychological Examiner, or Certified Psychological Assistant without a permit, license, certificate or other authorization from the Board is one of the violations of the Psychology 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 is guilty of a violation of the Psychology Act or rules promulgated pursuant thereto in such a 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 the person required to be licensed, certified, permitted, or authorized by the Board is guilty of a violation of the Psychology Act or rules promulgated pursuant thereto, which are neither directly detrimental to the patients or the public, nor directly impact their care, but have only an indirect relationship to patient care or the public.(c) Amount of civil penalties.1. "Type A" civil penalties shall be assessed in the amount of not less than five hundred dollars ($500) nor more than one thousand dollars ($1000).2. "Type B" civil penalties may be assessed in the amount of not less than one hundred dollars ($100) nor more than five hundred dollars ($500).3. "Type C" civil penalties may be assessed in the amount of not less than fifty dollars ($50) nor more than one hundred dollars ($100).(d) Procedures 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.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 Administrative Procedures Act, T.C.A. §§ 4-5-301, et seq.(7) Settlements. Any member of the Board or the Consultant is authorized to enter into settlement agreements under which a complaint against a licensee or certificate holder may be closed, subject to ratification by the Board. Such agreements may include any terms deemed appropriate including, but not limited to:(a) Mandatory education program or course attendance;(b) Submission of reports, records or other appropriate documentation; or(c) Conditioning of the Psychologist's, Senior Psychological Examiner's, Psychological Examiner's, or Certified Psychological Assistant's activities in any manner which affects his or her practice in Tennessee.(8) Screening Panels - Any screening panel(s) established pursuant to T.C.A. § 63-1-138: (a) Shall have concurrent authority with the Board members and any individual Psychologist designated by the Board pursuant to paragraph (5) of Rule 1180-1-.14, to do the acts enumerated in paragraph (5) of Rule 1180-1-.14 subject to the conditions contained therein. 1. A screening panel(s) comprised of two (2) or more persons shall elect a chairperson prior to convening to conduct business.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 completion of an investigation by the Division, may upon request of either the state, or the licensee or certificate holder who is the subject of an investigation with the agreement of the state, or upon agreement of both the licensee or certificate holder 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 Alternative Dispute Resolution, the Rules of Evidence or Contested Case Procedural Rules under the Administrative Procedures Act shall apply in informal hearings before the screening panel(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 or certificate holder who is the subject of the investigation.3. A licensee or certificate holder who is the subject of an investigation being considered by a screening panel cannot be compelled to participate in any informal hearing.4. 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 or certificate holder; and(iii) Subsequently presented to and ratified by the Board or a duly constituted panel of the Board.Tenn. Comp. R. & Regs. 1180-01-.10
Original rule filed August 29, 2000; effective November 12, 2000. Amendment filed June 18, 2002; effective November 1, 2002. Amendment filed August 9, 2004; effective October 23, 2004.Authority: T.C.A. §§ 4-5-105, 4-5-202, 4-5-204, 4-5-217, 4-5-223, 63-1-122, 63-1-134, 63-1-138, 63-11-104, 63-11-201, and 63-11-215 through 63-11-217.