33-2-417 - Provision of services without license Actions by commissioner Violations. - Tennessee Statutes

33-2-417. Provision of services without license Actions by commissioner Violations.

(a)  If the commissioner finds that a service or facility is providing mental health, developmental disability, or personal support services without a license, the commissioner may, without prior notice, order the service or facility immediately to cease and desist from providing mental health, developmental disability, or personal support services. Before issuing a cease and desist order, the commissioner shall find that entering the order is in the public interest; necessary for the protection of the health, safety, or welfare of the service recipients of the service or facility; and consistent with the purposes fairly intended by this part.

(b)  The order shall state the relevant findings of fact and conclusions of law that support the commissioner's finding that entering the order without prior notice is in the public interest, necessary for the protection of the service recipients of the service or facility, and consistent with this part. The order shall provide notice to the respondent of the respondent's rights and responsibilities concerning review of the order.

(c)  (1)  The owner of the service or facility ordered to cease and desist operation may seek review of the order before the commissioner or the commissioner's designee under this subsection (c).

     (2)  The owner or legal representative of the service or facility may request an informal conference before the commissioner or the commissioner's designee. The request shall be filed with the commissioner within thirty (30) days of entry of the order. The commissioner or the commissioner's designee shall convene the requested informal conference within seven (7) days of the date of receipt of the request. The conference is informal and the service or facility has the right to be represented by counsel at all stages of the informal conference.

     (3)  The sole issue to be determined at the informal conference is whether the service or facility was operating without a license as required by this part prior to or concurrently with the date of the entry of the order. This part and its rules control this determination. At the conference the commissioner may uphold, amend, or rescind the cease and desist order. Unless contested under subdivision (c)(3), the original or amended cease and desist order becomes a final order within seven (7) days.

     (4)  If the commissioner or the commissioner's designee determines, as a result of the informal conference, that the cease and desist order should be amended or should not be rescinded, the owner or legal representative of the service or facility may seek review of the order under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. The request shall be made in writing to the commissioner within seven (7) days of receipt of written notice of the commissioner's decision. Upon receipt of the request, the commissioner shall immediately refer the matter to the department of state for initiation of contested case proceedings.

     (5)  If the respondent fails to request an informal conference under subdivision (c)(1), then the cease and desist order becomes a final order of the commissioner within thirty (30) days of its entry. The service or facility may obtain judicial review of this final order in the chancery court of Davidson County under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.

(d)  It is a Class B misdemeanor to violate a cease and desist order lawfully entered by the commissioner. Each day of operation in violation of the commissioner's cease and desist order, calculated from the date of its service upon the owner or operator of the service or facility, is a separate offense.

(e)  Nothing in this part precludes any person, including the department, who is aggrieved by the operation of an unlicensed service or facility from pursuing other remedies and sanctions, including those provided by §§ 33-2-405 and 33-2-412.

[Acts 1996, ch. 796, § 1; T.C.A., § 33-2-513; Acts 2000, ch. 947, § 1; T.C.A. § 33-2-416; Acts 2001, ch. 282, § 7; 2001, ch. 299, § 1.]