Tenn. Comp. R. & Regs. 1180-05-.14

Current through December 10, 2024

Section 1180-05-.14 - ACTIONS, CIVIL PENALTIES AND SETTLEMENTS

(1) Upon a finding by the Committee and the Board that a licensed behavior analyst or licensed assistant behavior analyst has violated any provision of the Applied Behavior Analyst Practice Act (T.C.A. §§ 63-11-301, et seq.) or the rules promulgated pursuant thereto, the Committee and the Board may take any of the following actions separately or in any combination which is deemed appropriate to the offense:

(a) Formal Censure or Reprimand. This is a written action issued for a single occurrence and less severe violations. It is a formal disciplinary action.

(b) Probation. This is a formal disciplinary action which places a licensed behavior analyst or licensed assistant behavior analyst 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 individual's activities during the probationary period.

(c) 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 previously issued.

(d) Revocation. This is the most severe form of disciplinary action which removes an individual from the practice of the profession and terminates the license previously issued. No new application for licensure from a person whose license or certificate was revoked shall be considered prior to the expiration of at least one (1) year from the date of entry of the order unless otherwise stated in the Committee's revocation order.

(e) Conditions. Any action deemed appropriate by the Committee and the Board to be required of a disciplined licensee in any of the following circumstances:

1. During any period of probation or suspension; or

2. Prior to new application following any revocation order; or

3. As a prerequisite to the lifting of probation or suspension; or

4. As a stand-alone requirement(s) in any disciplinary order.

(f) Civil Penalty. A monetary disciplinary action assessed by the Committee and the Board pursuant to paragraph four (4) of this rule.

(g) Assessment of costs in disciplinary hearings shall be set forth in T.C.A. §§ 63-1-144 and 63-11-303.

(h) Once ordered, probation, suspension, 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 two (2) of this rule, and appears before the Committee after the period of initial probation, suspension, or other conditioning has run and all conditions placed on the probation, suspension, have been met, and after any civil penalties and costs assessed have been paid.

(2) Order of Compliance - This procedure is a necessary adjunct to each previously issued disciplinary order containing probation, suspension or other condition limiting the licensee's ability to practice. An order of compliance is available only when a petitioner has completely complied with the conditions of a previously issued disciplinary order, including payment of civil penalties, completion of continuing education courses, or payment of administrative costs. If all conditions of the ordered discipline have been satisfied, or if no conditions have been placed on the license in addition to probation or suspension, the Board may consider a petition at its last meeting before the expiration of any such discipline. The Board, at its discretion, may require the petitioner to appear before granting such order. No discipline issued by the Board shall be lifted until the licensee petitions for and receives such order from the Board, which shall only be effective the original date the discipline was to expire, and in no event effective earlier than the date of petition, pursuant to this paragraph.

(a) The Committee and 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 two (2) 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.

(b) Procedures

1. The petitioner shall submit a Petition for Order of Compliance, as contained in subparagraph (c), to the Disciplinary Coordinator 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 Committee's consultant and legal 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 Committee authorizes its consultant and legal 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 Committee and 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 Committee and 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 Committee and 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 Committee or 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.

(c) Form Petition

Petition for Order of Compliance

Applied Behavior Analyst Licensing Committee

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

Note - You must enclose all documents necessary to prove your request including a copy of the original order. If any of the proof you are relying upon to show compliance is the testimony of any individual, including yourself, you must enclose signed statements from every individual you intend to rely upon attesting, under oath, to the compliance. The Committee's consultant, the Disciplinary Coordinator, and legal staff, in their discretion, may require such signed statements to be notarized. No documentation or testimony other than that submitted will be considered in making an initial determination on, or a final order in response to, this petition.

Respectfully submitted this the_ day of____________ , 20 __.

__________________

Petitioner's Signature

(3) Order Modifications. 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 Committee and 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 Committee and 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 Committee's legal staff 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 Committee authorizes its consultant and legal 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 Committee and 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 Committee and 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 Committee and 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 Committee or 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.

(c) Form Petition

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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 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) 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 Committee finds the person required to be licensed by the Committee is guilty of a willful and knowing violation of the Applied Behavior Analyst Practice 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 client or the public. For purposes of this paragraph, willfully and knowingly practicing as a licensed behavior analyst or licensed assistant behavior analyst without a license or other authorization from the Committee is one of the violations of the Applied Behavior Analyst Practice Act for which a "Type A" civil penalty is assessable.

2. A "Type B" civil penalty may be imposed whenever the Committee finds the person required to be licensed or authorized by the Committee is guilty of a violation of the Applied Behavior Analyst Practice Act or rules promulgated pursuant thereto in such a manner as to impact directly on the care of clients or the public.

3. A "Type C" civil penalty may be imposed whenever the Committee finds the person required to be licensed or authorized by the Committee is guilty of a violation of the Applied Behavior Analyst Practice Act or rules promulgated pursuant thereto, which are neither directly detrimental to the clients or the public, nor directly impact their care, but have only an indirect relationship to client 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. Civil penalties may be initiated and assessed by the Committee during consideration of any Notice of Charges. In addition, the Committee may, upon good cause shown, assess a type and amount of civil penalty which was not recommended by the Division.

2. In assessing the civil penalties pursuant to these rules, the Committee may consider the following factors:

(i) Whether the amount imposed will be a substantial economic deterrent to the violator;

(ii) The circumstances leading to the violation;

(iii) The severity of the violation and the risk of harm to the public;

(iv) The economic benefits gained by the violator as a result of non-compliance; and

(v) The interest of the public.

3. All proceedings for the assessment of civil penalties shall be governed by the Administrative Procedures Act, T.C.A. §§ 4-5-301, et seq.

Tenn. Comp. R. & Regs. 1180-05-.14

Original rule filed March 23, 2017; effective 6/21/2017.

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, and 63-11-310.