Tenn. Comp. R. & Regs. 1365-01-.11

Current through September 10, 2024

Section 1365-01-.11 - DISCIPLINARY ACTIONS AND CIVIL PENALTIES

(1) Actions - Upon a finding by the Board that any provision of the Tennessee Social Worker Practice Act or the rules promulgated pursuant thereto has been violated, the Board may impose any of the following actions separately or in any combination deemed appropriate to the offense:

(a) Denial of an application for licensure;

(b) "Letter of warning." This is a written action. It is informal and advisory in nature and does not constitute a formal disciplinary action;

(c) "Formal reprimand." This is a written action. It is a formal disciplinary action;

(d) "Probation." This is a formal disciplinary action for a fixed period of time;

(e) "Licensure suspension." This is a formal disciplinary action which suspends an individual's right to practice for a fixed period of time. It contemplates the re-entry of the individual into the practice under the licensure previously issued;

(f) "Licensure revocation." This is a formal 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 No new application for licensure from a person whose license was revoked shall be considered prior to the expiration of at least one (1) year unless otherwise stated in the Board's revocation order;

(g) 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 or suspension;

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

3. As a stand-alone requirement or requirements in any disciplinary action.

(h) Civil penalty - A monetary disciplinary action assessed by the Board pursuant to paragraph four (4) of this rule.

(2) Order Modifications - A licensee can petition the Board to modify a previously issued disciplinary order if the licensee cannot fulfill the conditions of the imposed discipline. This procedure is only available after all reconsideration and appeal rights have been either exhausted or not timely pursued. This procedure cannot be used to modify any findings of fact, conclusions of law, or the reasons for the decision contained in the order.

(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 (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 or impractical for personal, financial, scheduling or other reasons.

(b) Procedures

1. The petitioner shall submit a written and signed Petition for Order Modification to the Board's Office that shall contain all of the following:

(i) A copy of the previously issued order;

(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 prove 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 administrative staff to make an initial determination on the petition and take one (1) 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 the Office of General Counsel, 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 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.

4. 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 request, in writing, to appear before the Board not less than thirty (30) days before the next regularly scheduled meeting of the Board.

(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 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 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 Board's Administrative Office that shall contain all of the following:

(i) A copy of the previously issued order;

(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 (1) 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 1200-10-01-.11.

(c) Form Petition

Petition for Order of Compliance

Board of Social Worker Licensure

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.

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 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) Civil Penalties - 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.

(a) Schedule and Amount of Civil Penalties

1. A Type A civil penalty may be imposed whenever the Board finds the person who is required to be licensed by the Board is guilty of a willful and knowing violation of T.C.A. §§ 63-23-101, et seq. or regulations promulgated pursuant thereto, to such an extent that there is, or is likely to be a substantial threat to the health, safety and welfare of an individual client or the public. For purposes of this section, a type A penalty may be imposed in instances including, but not limited to, those in which a person is or was practicing social work without a license from the Board. Type A civil penalties shall be assessed in the amount of not less than five hundred ($500) dollars and not more than one thousand ($1000) dollars.

2. A Type B civil penalty may be imposed whenever the Board finds the person required to be licensed by the Board is guilty of a violation of T.C.A. §§ 63-23101, et seq. or regulations promulgated pursuant thereto in such manner as to impact directly on the care of clients or the public. Type B civil penalties may be assessed in the amount of not less than one hundred ($100) dollars and not more than five hundred ($500) dollars.

3. A Type C 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 violation of T.C.A. §§ 63-23-101, et seq. or regulations promulgated pursuant thereto, which is neither directly detrimental to the clients or public, nor directly impacts their care, but has only an indirect relationship to client care or the public. Type C civil penalties may be assessed in the amount of not less than fifty ($50) dollars and not more than one hundred ($100) dollars.

(b) Procedures for Assessing Civil Penalties

1. During a contested case proceeding the Board may assess civil penalties in a type and amount which was not recommended by the Office of General Counsel.

2. 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 noncompliance; and

(v) The interest of the public.

3. All proceedings for the assessment of civil penalties shall be governed by the contested case provisions of T.C.A. Title 4, Chapter 5.

Tenn. Comp. R. & Regs. 1365-01-.11

Original rule filed April 6, 1994; effective June 20, 1994. Amendment filed December 19, 1997; effective March 4, 1998. Amendment filed April 19, 2000; effective July 3, 2000. Amendment filed March 9, 2001; effective May 23, 2001. Amendment filed August 16, 2002; effective October 30, 2002. Amendment filed July 3, 2007; effective September 16, 2007. Amendment repealing and replacing rule filed April 30, 2010; effective July 29, 2010. Rule was previously numbered 1365-01-.12 but was renumbered 1365-01-.11 with the deletion of original rule 1365-01-.11 filed December 2, 2021; effective March 2, 2022. Amendments filed December 2, 2021; effective 3/2/2022.

Authority: T.C.A. §§ 4-5-202, 4-5-204, 63-1-134, 63-23-101, 63-23-102, 63-23-104, 63-23-105, 63-23106, 63-23-108, and 63-23-110 and Chapter 1016 of the Public Acts of 2008, § 1.