1. (1) The Department may, in addition to or in lieu of any other lawful disciplinary action, assess a civil penalty for each separate violation of a licensure law or rule.

2. (2) The procedure for imposing a civil penalty shall be as follows: SERVICE PROVIDERS (RATE STRUCTURE)

   1. (a) Department staff shall verbally notify a licensee that a civil penalty may be imposed due to the licensee’s violation of a licensure law or rule.
   2. (b) Within six (6) business days of the verbal notification, the licensee shall be notified in writing of the basis for the civil penalty and the amount imposed.
   3. (c) Within fifteen (15) days of the notification the licensee may file a written request for review by the Licensure Review Pane appointed under T.C.A., Title 33 Part. 2. Review shall be held at the earliest possible date.
   4. (d) The Licensure Review Panel shall report its recommendations to the Commissioner of the Department. The Commissioner shall determine whether the original action shall remain effective and notify the licensee.
   5. (e) Within fifteen (15) days of notification the licensee may file a written request for hearing before the Department. The hearing shall be conducted under the U.A.P.A. Title 4 Chapter 5.
   6. (f) The civil penalty shall be effective beginning on the date the written notification of the decision is issued.
   7. (g) The Department may impose a penalty for each day a licensee remains in violation of a licensure rule, regulation, ordinance or law. Each licensure law, rule, regulation or ordinance violated shall constitute a separate offense.

3. (3) In determining the amount of the daily penalty, the commissioner may consider the following:

   1. (a) The severity of the violation and the harm or risk of harm to a person supported;
   2. (b) The willfulness of the violation;
   3. (c) The circumstances leading to the violation;
   4. (d) The efforts made by the licensee to attain compliance;
   5. (e) Any extraordinary enforcement cost incurred by the Department;
   6. (f) The interest of the public; and
   7. (g) Whether the civil penalty imposed will be an economic deterrent to the non-compliant activity.

4. (4) The Department may impose a civil penalty in accordance with the following schedule:

   1. (a) First Offense

      1. 1. Priority 1/Critical Offenses - $500.00
      2. 2. All other offenses - $250.00

   2. (b) Second or subsequent offense of same type within a twelve (12) month period:

      1. 1. Priority 1/Critical Offense - $2,500.00 to $5,000.00 SERVICE PROVIDERS (RATE STRUCTURE)
      2. 2. All other offenses - $500.00 to $2,500.00
5. (5) The Department may continue to work with a licensee to seek compliance with any licensure law or rule. The Department may waive any penalty determined by the Department to impose a hardship. A hardship waiver of a civil penalty may be granted only when strict enforcement of a particular requirement would not be in the best interest of persons supported.
6. (6) A “Priority 1 offense,” for the purposes of these rules is defined as a substantiated investigation involving the death of a person supported; neglect, physical or sexual abuse of the person supported by the licensee or staff; and/or a serious injury to a person supported. A “critical offense,” for purposes of these rules, is defined as those Department-designated administrative rules whose violation could result in serious harm to the person supported.

Authority: T.C.A. §§ 4-4-103, 4-5-202, 33-1-201, 33-1-302, 33-1-303, 33-1-305, 33-1-309, 33-2-301, 33- 2-302, 33-3-404, 33-2-407. Administrative History: New rules filed July 6, 2016; effective October 4, 2016.