Chapter 1
Division of Health Related Boards

Part 1
General Provisions

63-1-101. Powers and duties.

The division of health related boards, in the department of health, is responsible for all administrative, fiscal, inspectional, clerical and secretarial functions of the health related boards under § 68-1-101.

Acts 1947, ch. 9, § 1; C. Supp. 1950, § 6907.1 (Williams, § 6917.18); Acts 1953, ch. 113, § 45; 1959, ch. 9, § 15; T.C.A. (orig. ed.), § 63-101; Acts 1984, ch. 937, §§ 3, 54; T.C.A., § 63-1-102.

Compiler's Notes. Former § 63-1-101 was transferred to § 63-1-119 in 1986.

Cross-References. Revocation or denial of professional licenses for child support enforcement, title 36, ch. 5, part 7.

State examining boards, general provisions, title 4, ch. 19.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Physicians and Surgeons, § 2.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777.

The Standard of Care: The Road Not Taken-Using County Size to Determine the Standard of Care, 43 U. Mem. L. Rev. 767 (2013).

Attorney General Opinions. Regulation of the practice of acupuncture, OAG 95-027, 1995 Tenn. AG LEXIS 29 (4/4/95).

Neither the emergency services board nor the division of health related boards have authority to issue administrative subpoenas to compel the attendance of witnesses or the production of documents prior to the commencement of an administrative action, OAG 01-055, 2001 Tenn. AG LEXIS 47 (4/10/01).

NOTES TO DECISIONS

1. Constitutionality.

Any constitutional defects in the enactment of the 1953 amendment were cured by its reenactment by the 1955 Code. Seawell v. Beeler, 199 Tenn. 438, 287 S.W.2d 54, 1956 Tenn. LEXIS 342 (1956)

2. Scope.

Body of act regulating practice of healing arts and prescribing penalty for its violation is not broader than its caption. Short v. State Licensing Board for Healing Arts, 193 Tenn. 389, 246 S.W.2d 56, 1952 Tenn. LEXIS 304 (1952)

3. Treatment of Different Professions.

Podiatrists, chiropractors, optometrists, osteopaths, psychologists, veterinarians, physical therapists, dispensing opticians, nursing home administrators, and speech pathologists are not all members of the same class and thus there is no requirement that they receive identical treatment, either civilly or criminally, under the licensure laws, even though all are generally subject to the regulation and supervision of the board for the healing arts. State v. Blockman, 615 S.W.2d 672, 1981 Tenn. LEXIS 430 (Tenn. 1981)

4. Health Care Practitioners.

A definition of “health care practitioners,” which includes all occupations licensed pursuant to title 63, some of whom cannot be sued for medical malpractice, is too broad; the definition is also too narrow because it omits any health care practitioners who are licensed under a separate title. Mooney v. Sneed, 30 S.W.3d 304, 2000 Tenn. LEXIS 572 (Tenn. 2000)

63-1-102. Chapter definitions.

For the purposes of this chapter:

  1. “Division” means the division of health related boards in the department of health as created by § 68-1-101;
  2. “Health care prescriber” means a:
    1. Physician licensed under chapter 6 or 9 of this title;
    2. Dentist licensed under chapter 5 of this title;
    3. Nurse licensed under chapter 7 of this title;
    4. Podiatrist licensed under chapter 3 of this title;
    5. Optometrist licensed under chapter 8 of this title; and
    6. Physician assistant licensed under chapter 19 of this title;
  3. “Practice of the healing arts” means offering or undertaking to diagnose, treat, operate on or prescribe for any human pain, injury, disease, deformity or physical or mental condition. The practice of acupuncture is hereby declared to be included within the definition of “practice of the healing arts” as defined by this section; and
  4. “Title” means the recognized professional abbreviation or professional designation immediately following or immediately below the person's name that indicates the professional license or certification held by such person.

Acts 1947, ch. 9, § 2; 1947, ch. 107, § 1; C. Supp. 1950, § 6907.2 (Williams, § 6917.19); Acts 1955, ch. 160, § 1; 1969, ch. 338, § 1; 1973, ch. 350, § 1; 1973, ch. 393, § 1; 1975, ch. 355, §§ 1, 2; 1980, ch. 851, § 1; T.C.A. (orig. ed.), § 63-102; Acts 1984, ch. 937, § 55; T.C.A., § 63-1-103; Acts 2005, ch. 467, § 3; 2014, ch. 983, § 4.

Compiler's Notes. Acts 2014, ch. 983, § 5 provided that the commissioner of health is authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

NOTES TO DECISIONS

1. Diagnosis and Treatment Without License.

Conviction for violating the healing arts act was sustained where the defendant, without a license from the healing arts board, diagnosed the patient and treated her for cancer Reinhart v. State, 193 Tenn. 15, 241 S.W.2d 854, 1951 Tenn. LEXIS 320 (1951)

2. Fitting and Adjusting False Teeth.

A person making impressions, fitting and adjusting false teeth and charging for work and having no license may be enjoined. State Board of Dental Examiners v. Rymer, 202 Tenn. 234, 303 S.W.2d 959, 1957 Tenn. LEXIS 385 (1957)

3. Nurse Acting as Midwife.

Because the legislature has specifically excluded the practice of midwifery from the definition of medicine in § 63-6-204 and because the Nursing Practice Act, chapter 7 of this title, does not deal with midwifery nor is it included within the definition of professional nursing in § 63-7-103, the Tennessee board of nursing did not have jurisdiction over a licensed nurse while she was rendering services as a lay midwife. Leggett v. Tennessee Bd. of Nursing, 612 S.W.2d 476, 1980 Tenn. App. LEXIS 412 (Tenn. Ct. App. 1980)

4. Opticians.

Dispensing opticians were properly subject to regulation under Dispensing Opticians Act, chapter 14 of this title, even though not a profession since such business or calling is related to the public health and field of healing arts. Tennessee Board of Dispensing Opticians v. Eyear Corp., 218 Tenn. 60, 400 S.W.2d 734, 1966 Tenn. LEXIS 550 (1966)

63-1-103. Application for licenses.

Each application for a license filed with the division shall be on forms prescribed by the division or via online application and shall be accompanied by a fee as set by the division.

Acts 1947, ch. 9, § 4; mod. C. Supp. 1950, § 6907.4 (Williams, § 6917.21); Acts 1953, ch. 113, § 3; T.C.A. (orig. ed.), § 63-108; Acts 1984, ch. 937, § 61; T.C.A., § 63-1-109; Acts 1990, ch. 1026, § 27; 2014, ch. 949, § 1.

Compiler's Notes. Former § 63-1-103 was transferred to §§ 63-1-102 and 63-1-104(c) in 1986.

63-1-104. Issuance of licenses.

  1. Upon proper direction by the appropriate licensing board, the division shall forthwith issue to the applicant a license of a size and artistic design to be determined by the board.
  2. Every such license issued by the division shall be dated and be numbered in the order of issuance and shall be signed by the executive officer and by the members of the state board charged with the duty by law of issuing the preliminary certificates.
  3. No license, examination or certification shall be denied to any person for practice of any of the healing arts under this title because such person is not a citizen of the United States, if such person is legally entitled to live within the United States.
  4. Any board, committee, council, or agency created pursuant to this title or title 68 that regulates health professionals shall have the authority to do the following at its discretion:
    1. Issue a limited license of temporary duration to applicants who have been out of clinical practice or inactive in their practice for an extended period of time, or who have been or are at the time of their application engaged exclusively in administrative practice; provided, that the applicant meets all other requirements for licensure;
    2. Restrict the scope of practice under such limited license as deemed appropriate;
    3. Restrict the duration of such limited license as deemed appropriate;
    4. Condition the granting of a full license upon an applicant's completion of any educational measures or supervised practice requirements deemed necessary and appropriate to ensure the applicant's competency to practice the profession for which a license is sought.
  5. At the conclusion of the duration of a limited license granted pursuant to subsection (d), an applicant may be eligible for full licensure if the applicant has completed the educational measures or supervised practice requirements the board, committee, council, or agency deemed necessary and appropriate to ensure the applicant's competency to practice. The board, committee, council, or agency may grant a full license before the conclusion of a limited license's duration if an applicant has completed the specified educational measures or practice requirements prior to the expiration of the limited license.
  6. A board, committee, council, or agency may promulgate rules establishing other conditions or requirements with respect to the issuance of limited licenses pursuant to this section in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  7. The recipient of a limited license pursuant to this section may engage in the full scope of practice of the applicable profession subject to any limitations or restrictions imposed by the board, committee, council, or agency.

Acts 1947, ch. 9, § 4; C. Supp. 1950, § 6907.4 (Williams, § 6917.21); Acts 1969, ch. 338, § 1; 1980, ch. 851, § 5; T.C.A. (orig. ed.), § 63-109; Acts 1975, ch. 355, § 1; 1984, ch. 937, § 62; T.C.A., §§ 63-1-103, 63-1-110; Acts 2017, ch. 240, § 2.

Compiler's Notes. Former § 63-1-104 (Acts 1947, ch. 9, § 3; mod. C. Supp. 1950, § 6907.3 (Williams, § 6917.20); Acts 1953, ch. 113, § 2; 1973, ch. 393, § 2; 1974, ch. 495, § 6; 1976, ch. 650, § 16; 1980, ch. 851, § 2; T.C.A. (orig. ed.), § 63-103, concerning certificates of fitness for licensing and recommendations for certifying nurse practitioners, was repealed by Acts 1984, ch. 937, § 56.

Amendments. The 2017 amendment added (d)-(g).

Effective Dates. Acts 2017, ch. 240, § 6.  May 2, 2017.

63-1-105. Signing of licenses.

Before issuing any license as provided in this chapter, the division shall cause the license to be signed by the members of the board of the particular branch of the healing arts in which the holder thereof is being licensed.

Acts 1953, ch. 113, § 1 (Williams, § 6917.19); T.C.A. (orig. ed.), § 63-110; Acts 1984, ch. 937, § 63; T.C.A., § 63-1-111.

Compiler's Notes. Former § 63-1-105 was transferred to § 63-1-118 in 1986.

63-1-106. Duplicate licenses — Change of name — Fee.

  1. A licensee of any branch of the healing arts whose license has been lost or destroyed may make application to the board of that particular branch of the healing arts for a new license. Such application shall be accompanied by an affidavit setting out the facts concerning the loss or destruction of the license.
  2. Any licensee of any branch of the healing arts whose name is changed by marriage or court order may surrender that licensee's license and apply to the board of that particular branch of the healing arts for a new license.
  3. The fee for such new license shall be set by the board issuing such certificate.

Acts 1953, ch. 113, § 2 (Williams, § 6917.20); T.C.A. (orig. ed.), § 63-105; Acts 1984, ch. 937, § 58; 1990, ch. 1026, § 28.

63-1-107. License renewals.

    1. Every person licensed to practice any branch of the healing arts in this state shall apply to the division for a certificate of registration. Notwithstanding any provision of this title to the contrary, the division, with the approval of the commissioner, shall establish a system of license renewals at alternative intervals that will allow for the distribution of the license workload as uniformly as is practicable throughout the calendar year. Licenses issued under the alternative method are valid for twenty-four (24) months and expire on the last day of the last month of the license period. However, during a transition period, or at any time thereafter when the board determines that the volume of work for any given interval is unduly burdensome or costly, either the licenses or renewals, or both of them, may be issued for terms of not less than six (6) months nor more than eighteen (18) months. The fee imposed for any license under the alternative interval method for a period of other than twenty-four (24) months shall be proportionate to the annual fee and modified in no other manner, except that the proportional fee shall be rounded off to the nearest quarter of a dollar (25¢).
    2. No renewal application will be accepted after the last day of the month following the license expiration date under the alternative method authorized in subdivision (a)(1).
    1. All new licenses issued by the division, upon application and payment of the registration fee provided in this subsection (b), shall be registered by the division at the time of issuance and a certificate of registration shall be issued to the licensee.
    2. Each application shall be made on a form to be furnished by the division. Such application shall give the applicant's name in full, the applicant's address, the date and number of the license issued to such applicant for the practice of the healing arts or any branch thereof, and such other facts as tend to identify the applicant and the applicant's license as the division deems necessary.
    3. Each applicant for registration shall submit with the application a fee as set annually by the division.
  1. When any licensee fails to register and pay the annual registration fee within sixty (60) days after the registration becomes due as provided in this section, the license of such person shall be automatically revoked at the expiration of sixty (60) days after the registration was required, without further notice or hearing.
  2. Any person whose license is automatically revoked as provided in subsection (c) may make application in writing to the appropriate licensing board for the reinstatement of such license; and, upon good cause being shown, the division and the board in their discretion may reinstate such license upon the payment of the renewal fee as set by the board as well as a late renewal fee set by the board, which may not exceed twice the renewal fee.

Acts 1947, ch. 9, § 5; mod. C. Supp. 1950, § 6907.5 (Williams, § 6917.22); Acts 1953, ch. 113, § 4; 1973, ch. 166, § 1; 1975, ch. 355, § 3; 1976, ch. 406, § 1; 1976, ch. 566, § 1; T.C.A. (orig. ed.), § 63-113; Acts 1984, ch. 937, § 66; T.C.A., § 63-1-114; Acts 1989, ch. 360, §§ 15, 16; 1990, ch. 1026, §§ 29, 30; 2010, ch. 1043, § 1; 2016, ch. 763, § 1.

Compiler's Notes. Former § 63-1-107 (Acts 1947, ch. 9, § 3; mod. C. Supp. 1950, § 6907.3 (Williams, § 6917.20); Acts 1953, ch. 113, § 2; T.C.A. (orig. ed.), § 63-106), concerning failure of branch boards to comply, was repealed by Acts 1984, ch. 937, § 59.

63-1-108. Certificate of registration — Change of address of registrant — Service of process.

  1. Upon due application by a licensee of the division and upon the payment of fees required to be paid by this chapter, the division shall issue to such applicant a certificate of registration signed by the executive officer of the division, which certificate shall recite that such person is duly registered for the year specified.
  2. Such certificate of registration shall contain the name of the person to whom it is issued, the address of the person, which shall be the address of the licensee deemed sufficient for purposes of service of process, the branch of the healing arts in which the person is licensed to practice, the date and number of the license and such other information as the division deems advisable.
  3. If any registrant changes address during the year for which any certificate of registration has been issued by the division, such registrant, within thirty (30) days thereafter, shall notify the division of such change, whereupon the division shall issue to such registrant, without additional fee, a duplicate registration certificate for such new location.
  4. For the purpose of effecting service of process upon a licensee, the division may notify the licensee by certified mail, return receipt requested, at the address on file with the division.

Acts 1947, ch. 9, § 6; mod. C. Supp. 1950, § 6907.6 (Williams, § 6917.23); Acts 1975, ch. 355, § 4; T.C.A. (orig. ed.), § 63-114; Acts 1984, ch. 937, § 67; T.C.A., § 63-1-115; Acts 1990, ch. 1026, § 32.

Compiler's Notes. Former § 63-1-108 (Acts 1947, ch. 9, § 3; mod. C. Supp. 1950, § 6907.3 (Williams, § 6917.20); Acts 1953, ch. 113, § 2; T.C.A. (orig. ed.), § 63-107) concerning powers of examining boards, was repealed by Acts 1984, ch. 937, § 60.

NOTES TO DECISIONS

1. Service.

Tennessee Department of Health properly obtained service by mail under the Rules of Procedure for Contested Cases of the Rules of the Secretary of State because service by certified mail was sufficient despite the Department's failure to obtain a return receipt signed by the doctor. Wyttenbach v. Bd. of Tenn. Med. Examiners, — S.W.3d —, 2016 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 15, 2016), appeal denied, Wyttenbach v. Bd. of TN Med. Examiners, — S.W.3d —, 2016 Tenn. LEXIS 674 (Tenn. Sept. 23, 2016).

63-1-109. Display of license or certificate of registration — Terminology used in signs and written material.

  1. Every person licensed or registered to practice one of the healing arts, or any branch thereof, as delineated in this section shall keep an original or copy of the person's license or certificate of registration displayed in the office or place in which the person practices, in a conspicuous place, and shall place and keep placed in a conspicuous place at the entrance of the person's office, a sign in intelligible lettering and not less than one inch (1") in height, containing the name of such person immediately followed by the recognized abbreviation indicating the professional degree, if any, held by such person, and containing immediately below the person's name, in equal size lettering, the word or words:
    1. “Chiropractor,” “chiropractic physician” or “doctor of chiropractic” for practitioners of chiropractic;
    2. “Dentist,” “doctor of dental surgery” or “doctor of dental medicine” for practitioners of dentistry;
    3. “Medical doctor,” “physician,” “medical doctor and surgeon,” “medicine” or “surgeon,” as applicable, for practitioners of medicine and surgery;
    4. “Optometrist,” “doctor of optometry” or “optometric physician” for practitioners of optometry;
    5. “Osteopathic physician,” “osteopathic physician and surgeon,” “doctor of osteopathic medicine” or “doctor of osteopathy” for practitioners of osteopathy;
    6. “Podiatrist,” “podiatric physician,” “doctor of podiatry,” “doctor of podiatric medicine” or “doctor of podiatric medicine and surgery” for practitioners of podiatry;
    7. “Advanced practice registered nurse,” “nurse practitioner,” “nurse anesthetist,” “nurse midwife” or “clinical nurse specialist,” as applicable, for those practicing advanced practice nursing;
    8. “Physician assistant” or “orthopedic physician assistant,” as applicable, for those licensed as a physician assistant;
    9. “Psychologist” or “doctor of psychology” for practitioners of psychology;
    10. “Acupuncturist” for practitioners of acupuncture; and
    11. “Certified professional midwife” for those practitioners of midwifery.
  2. Any recognized specialist in any branch of the healing arts, which special field is recognized or approved by the appropriate board licensing that profession, may substitute the specialist designation for the words indicated in subsection (a).
  3. A healthcare practitioner listed in subsection (a) shall also affirmatively communicate the practitioner's specific licensure, as defined in this section by one (1) of the following methods:
    1. The healthcare practitioner shall wear a photo identification name tag during all patient encounters that shall include a recent photograph of the licensee, the licensee's full name, and the type of license. The name tag shall be of sufficient size and be worn in a conspicuous manner so as to be visible and apparent; or
    2. After January 1, 2012, the healthcare practitioner shall communicate to a patient the practitioner's full name and type of license in writing at the patient's initial office visit.
  4. For purposes of subsection (c), the type of license shall enunciate one (1) or more of the words listed in subsection (a).
  5. A healthcare practitioner who practices in more than one (1) office shall be required to comply with the requirements in each practice setting.
  6. A healthcare practitioner who does not have an office setting can satisfy the requirements of this section by meeting the conditions set forth in subsection (c).
  7. Healthcare practitioners working in facilities licensed pursuant to title 68, chapter 11, or working in facilities licensed pursuant to title 33, chapter 2, are not subject to the requirements of this section.
  8. Healthcare practitioners working in no-patient care settings and who have no direct patient care interactions are not subject to the requirements of this section.
  9. Any healthcare practitioner who violates this section is guilty of unprofessional conduct and shall be subject to disciplinary action in accordance with the appropriate licensure provisions governing the respective healthcare practitioner. A violation of this section shall not create a private right of action by a patient.
  10. Notwithstanding the imposition of any other penalty, the board which has licensed a particular healthcare practitioner may seek injunctive or other relief as appropriate against that practitioner or any entity for a violation of this section.
  11. A healthcare practitioner, who provides information regarding healthcare services on an internet website that is directly controlled or administered by the healthcare practitioner or the practitioner's agent, shall prominently display on the internet website the practitioner's full name and type of license using one (1) or more of the words listed in subsection (a).

Acts 1947, ch. 9, § 8; C. Supp. 1950, § 6907.8 (Williams, § 6917.25); Acts 1953, ch. 113, § 5; T.C.A. (orig. ed.), § 63-117; Acts 1984, ch. 937, § 70; T.C.A., § 63-1-118; Acts 1994, ch. 901, § 5; 2005, ch. 467, § 1; 2011, ch. 75, § 1; 2016, ch. 980, § 4.

Compiler's Notes. Acts 2017, ch. 163, § 8 provided that nothing in the act, which amended § 63-1-502,  authorizes a chiropractic physician to use a title other than  the titles recognized in subdivision (a)(1).

63-1-110. Licensees in armed forces or public health service.

  1. Any person licensed to practice a healing art or any branch thereof in this state who is an officer in the commissioned medical corps of the army, the navy, the air force or the public health service of the United States shall not be required to register as provided in this chapter.
  2. When such person resigns or is honorably discharged from one of the services mentioned in subsection (a) and engages in the practice of a healing art or any branch thereof in this state, such person shall register with the appropriate board licensing that profession.

Acts 1947, ch. 9, § 7; C. Supp. 1950, § 690.7 (Williams, § 6917.24); modified; T.C.A. (orig. ed.), § 63-116; Acts 1984, ch. 937, § 69; T.C.A., § 63-1-117.

63-1-111. Retirement.

  1. Any person licensed to practice the healing arts or any branch thereof in this state who has retired or may hereafter retire from such practice shall not be required to register as required by this chapter.
  2. Such person shall file with the division an affidavit on a form to be furnished by the division, which affidavit shall state the date on which the person retired from such practice and such other facts as shall tend to verify such retirement as the division shall deem necessary.
  3. Any such person who thereafter reengages in the practice of the healing arts or any branch thereof shall register with the division as provided by this chapter.

Acts 1947, ch. 9, § 7; C. Supp. 1950, § 6907.7 (Williams, § 6917.24); T.C.A. (orig. ed.), § 63-115; Acts 1984, ch. 937, § 68; T.C.A., § 63-1-116.

63-1-112. License and registration fees.

  1. No fee for the issuance of licenses to practice the healing arts or any branch thereof shall be collected except by the appropriate board licensing that profession.
  2. All fees due the boards regulating the various branches of the healing arts shall be collected by the division.

Acts 1947, ch. 9, § 14; C. Supp. 1950, § 6907.14 (Williams, § 6917.31); Acts 1953, ch. 113, § 7; T.C.A. (orig. ed.), § 63-119; Acts 1984, ch. 937, § 71; T.C.A., § 63-1-119; Acts 2010, ch. 1043, § 2.

Compiler's Notes. Former § 63-1-112 (Acts 1947, ch. 9, § 4; C. Supp. 1950, § 6907.4 (Williams, § 6917.21); T.C.A. (orig. ed.), § 63-111), concerning denial of licenses, was repealed by Acts 1984, ch. 937, § 64.

63-1-113. Disbursement of fines and penalties — Operating expenses.

  1. All fines and penalties for offenses for the violation of this chapter shall be paid over to the division and shall become a part of the receipts of the division. All money received by the division shall be paid into the state treasury and become a part of the general fund of the state.
  2. The commissioner of finance and administration shall make such allotments out of the general fund as the commissioner may deem proper for the necessary expenses of all professional boards for which fees are collected by the division, and no expenditure shall be made by the division unless and until such allotment has been made by the commissioner. Such allotments shall be disbursed under the general budgetary laws of the state.

Acts 1947, ch. 9, § 13; mod. C. Supp. 1950, § 6907.13 (Williams, § 6917.30); Acts 1953, ch. 113, § 6; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; T.C.A. (orig. ed.), § 63-120; Acts 1984, ch. 937, § 72; T.C.A., § 63-1-120.

63-1-114. Directory of licensees.

The division shall publish a directory listing all persons licensed to practice any branch of the healing arts in Tennessee.

Acts 1947, ch. 9, § 3; mod. C. Supp. 1950, § 6907.3 (Williams, § 6917.20); Acts 1953, ch. 113, § 2; 1972, ch. 834, § 1; T.C.A. (orig. ed.), § 63-112; Acts 1984, ch. 937, § 65; T.C.A., § 63-1-113; Acts 1990, ch. 1024, § 32; 1990, ch. 1026, § 1; 2010, ch. 1043, § 3.

63-1-115. Employment of administrative and enforcement personnel.

The division is authorized to employ investigators, inspectors or agents or to use any other means necessary to bring about and maintain a rigid administration and enforcement of this chapter and all laws regulating the practice of the healing arts and the various branches thereof within this state.

Acts 1947, ch. 9, § 13; C. Supp. 1950, § 6907.13 (Williams, § 6917.30); Acts 1953, ch. 113, § 6; T.C.A. (orig. ed.), § 63-127; Acts 1984, ch. 937, § 78; T.C.A., § 63-1-127.

Law Reviews.

The Tennessee Court Systems — Prosecution,  8 Mem. St. L. Rev. 477.

63-1-116. Criminal background checks for health care providers.

  1. Each board, council, committee or other governmental entity created pursuant to this title or title 68 that is attached to the department is authorized to promulgate all rules and regulations necessary for obtaining criminal background information from applicants prior to the issuance of any licenses, certificates, registrations or other authorizations required to practice any of the health related professions regulated by that board, council, committee or other governmental entity. The respective board, council, committee or other governmental entity may utilize, either individually or in combination, any of the following methods in furtherance of the objectives of this section:
    1. Query the Tennessee bureau of investigation's (TBI) Tennessee criminal history records system for any or all of the following information:
      1. Tennessee criminal history records;
      2. Tennessee repository for apprehension of persons (TRAP);
      3. State of Tennessee orders of protection files (STOP); and
      4. Criminal history records of the federal government and other states to which TBI may have access. Criminal history records of the federal bureau of investigation may be obtained for the reasons listed in this subsection (a), only if fingerprints are obtained and submitted through the TBI;
    2. Require applicants to provide any and all information and investigative records to the board, the division or its agent or to any agency that contracts with the state that is necessary for the purpose of verifying whether the applicant has been convicted of a crime;
    3. Require applicants to supply a fingerprint sample and submit to a criminal history records check to be conducted by the TBI, other law enforcement agency or any legally authorized entity; and
    4. Require applicants to supply any sample or release any information required for a criminal background investigation by a professional background screening organization or criminal background check service or registry.
  2. All costs associated with the required criminal background checks shall be paid by the applicant. Payments of costs required to be made to the TBI shall be made in accordance with §§ 38-6-103 and 38-6-109.
  3. Any board, council, or committee or other governmental entity that denies an application or restricts or conditions any authorization to practice based upon information provided to it under this section shall be immune from suit by or on behalf of that applicant for the denial, restriction or condition.
  4. Initial rules promulgated pursuant to this section may be promulgated as emergency rules pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2007, ch. 182, § 1; 2009, ch. 566, § 12.

Compiler's Notes. Former § 63-1-116 (Acts 1975, ch. 355, § 7; 1980, ch. 605, §§ 2, 5; T.C.A., § 63-128; Acts 1984, ch. 937, § 79; T.C.A., § 63-1-128), concerning advertising, was repealed by Acts 2005, ch. 467, § 2, effective July 1, 2005.

Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

63-1-117. Conditions for making medical records available for inspection and copying — No application to records statutorily privileged — Immunity from liability — Compelling production of medical records — Disciplinary action — Confidentiality of disciplinary proceedings — Access to records during public health threat.

  1. Notwithstanding §§ 63-2-101(b), 68-11-1502 and 68-11-1503, and regardless of any express or implied contracts, agreements or covenants of confidentiality based upon those sections, health care providers shall make their medical records available for inspection and copying by the department of health or its representatives, designees or employees based on the following conditions:
    1. Upon the presentation of a written authorization for release signed by the patient or the patient's legal representative; or
    2. Upon a written request made by the department of health investigators, inspectors or surveyors who are performing authorized investigations, inspections or surveys of facilities or individuals licensed pursuant to this title or title 68 based on a complaint filed with the department or an inspection or survey required by state or federal law. The written request shall contain the nature of the violation, the applicable laws and rules that may have been violated and the specific date by which production of the records is required. The written request shall be made in good faith and shall be related to the complaint, inspection or survey.
  2. This section shall not apply to records that are made statutorily privileged, which shall require for their production a release that specifically identifies the privilege, contains a statement that the privilege is waived and that is signed by the patient or the patient's legal representative.
  3. Any health care provider or representative of any health care provider who furnishes records to a duly authorized representative, designee or employee of the department of health shall be immune from liability to any patient, individual or organization for furnishing such information, data, reports or records or for damages resulting from any decision, opinion, action and proceedings rendered, entered or acted upon by the department of health, if the information or other records or documents provided were provided or created in good faith and without malice and on the basis of facts reasonably known or reasonably believed to exist.
  4. In the event that a health care provider does not comply with the written request for medical records issued in compliance with subdivision (a)(2), the state may file a petition in the chancery court of Davidson County to compel production of the medical records within fifteen (15) days following the date specified for the production of the medical records contained in the written request.
  5. A health care provider's willful disregard of the request for medical records pursuant to this section is grounds for disciplinary action by the licensing board that regulates the health care provider.
  6. The following materials, documents, and other matters related to, or compiled or created pursuant to, an investigation conducted by or on behalf of the department are confidential and not a public record or subject to subpoena, except for subpoenas from law enforcement agencies, before formal disciplinary charges are filed against the provider:
    1. Allegations against the health care provider;
    2. Complainant's identifying information;
    3. Identifying information of a witness who requests anonymity;
    4. Patient's identifying information;
    5. Patient's medical record; and
    6. Any report or documents prepared by or on behalf of the department as a part of an investigation.
  7. After the filing of formal disciplinary charges against the provider, only the materials and documents upon which the charges are based may be disclosed as a public record, but not the complainant's identifying information, identifying information of a witness who requests anonymity, patient's identifying information, patient's medical record or investigator's report.
  8. Department annual health care facility and pharmacy survey inspection reports shall be available to the public pursuant to subsections (f) and (g).
  9. Pursuant to § 68-1-104, the commissioner or the commissioner's designee, upon request, shall obtain access to records maintained by any facility, entity, or individual licensed under this title. Access shall be given in the most efficient and expedient means possible, including remote electronic access, to facilitate investigations and inquiries while responding to an immediate threat to the public health, welfare, or general good. Electronic access shall be limited to the minimum necessary for the duration of the outbreak, event, or time in which the public health is under immediate threat as determined by the commissioner.
  10. This section does not modify or limit the prehearing discovery provisions set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  11. As used in this section:
    1. “Health care provider” means health care professionals, establishments or facilities licensed, registered, certified or permitted pursuant to this title or title 68 and regulated either under the authority of the department of health or any agency, board, council or committee attached to the department; and
    2. “Medical record” means any and all documents maintained by a health care provider relating to a patient's diagnosis, care and treatment, including, but not limited to, notes, reports, memos, emails, facsimile transmissions, laboratory tests, billing documents and medication orders.
  12. The commissioner of health is authorized to promulgate rules and regulations to effectuate this part.

Acts 1985, ch. 120, § 1; T.C.A., § 63-1-130; Acts 2003, ch. 281, § 1; 2004, ch. 575, §§ 1-3; 2005, ch. 118, §§ 1, 2; 2009, ch. 188, § 1; 2014, ch. 949, § 2; 2015, ch. 154, § 1; 2017, ch. 240, § 3; 2019, ch. 447, § 1.

Amendments. The 2017 amendment, in (f), substituted “, and other matters related to, or compiled or created pursuant to, an investigation conducted by or on behalf of the department shall be confidential and shall not be a public record or subject to subpoena” for “and other matters related to, compiled or created pursuant to an investigation, conducted by or on behalf of the department shall not be a public record” in the introductory language, and inserted “or documents” in (6).

The 2019 amendment, in (f), substituted “are” for “shall be”, substituted “and not a public” for “and shall not be a public”, and inserted “, except for subpoenas from law enforcement agencies,”.

Effective Dates. Acts 2017, ch. 240, § 6. May 2, 2017.

Acts 2019, ch. 447, § 2. May 22, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Information obtained pursuant to an administrative/investigative subpoena is confidential pending the introduction of the information at the administrative hearing to the extent that such information is obtained during an investigation by the division of health related boards or the board of medical examiners, OAG 01-055, 2001 Tenn. AG LEXIS 47 (4/10/01).

NOTES TO DECISIONS

1. Patient Confidentiality Not Violated.

Trial court properly concluded that the physician received adequate notice of the reasons for the request for medical records; however, physicians in Tennessee had no reasonable expectation that they could shield their patients'  records from the Tennessee board of medical examiners'  regulatory oversight and that the board may discipline physicians who willfully refused to comply with lawful requests for patient records that complied with T.C.A. § 63-1-117. McNiel v. Cooper, 241 S.W.3d 886, 2007 Tenn. App. LEXIS 241 (Tenn. Ct. App. Mar. 30, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 728 (Tenn. Aug. 13, 2007).

63-1-118. Certification of fitness for license in other state.

  1. A licensee of any branch of the healing arts who seeks to be licensed in another state by reciprocity on the basis of the licensee's Tennessee license shall have the application for the license certified by the board of the particular branch of the healing arts in which the licensee is licensed.
  2. The fee for this certificate shall be set by and paid to the board of the particular branch of the healing arts in which the applicant is licensed.

Acts 1947, ch. 9, § 3; mod. C. Supp. 1950, § 6907.3 (Williams, § 6917.20); Acts 1953, ch. 113, § 2; T.C.A. (orig. ed.), § 63-104; Acts 1984, ch. 937, § 57; T.C.A., § 63-1-105; Acts 1990, ch. 1026, § 31.

63-1-119. Effect of chapter on other law.

No provision of this chapter shall be construed as repealing any other law with reference to the requirements regulating the practice of the healing arts or any branch thereof, except insofar as the same may conflict with this chapter.

Acts 1947, ch. 9, § 9; C. Supp. 1950, § 6907.9 (Williams, § 6917.26); modified; T.C.A. (orig. ed.), § 63-118; Acts 1984, ch. 937, § 53; T.C.A., § 63-1-101.

63-1-120. Denial, withholding, suspending, limiting or restricting licensure, certification, permit, or authorization or otherwise disciplining holder of license, certificate, permit, or authorization — Disciplinary actions.

    1. With respect to any person required to be licensed, permitted, certified or authorized by any board, council, committee, agency, or regulatory program created pursuant to chapters 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31 of this title and to title 68, chapter 140 attached to the division of health related boards, such board, council, committee or agency may:
      1. Deny an application for licensure, certification, permit or authorization;
      2. Permanently withhold issuance of licensure, certification, permit or authorization;
      3. Suspend, limit or restrict previously issued licensure, certification, permit or authorization; or
      4. Otherwise discipline a holder of a license, certificate, permit or authorization, if the applicant, licensee or certificate or permit holder has been disciplined by another state of the United States for any acts or omissions that would constitute grounds for discipline of a person licensed, certified, permitted or authorized in this state.
    2. A certified copy of the initial order, final order or other equivalent document memorializing the disciplinary action from the disciplining state shall constitute prima facie evidence of a violation of this section and shall be sufficient grounds upon which to deny, restrict or condition the license, permit or certificate renewal or application, and/or otherwise to discipline a licensee licensed in this state.
  1. In disciplinary actions against individuals holding a license, certificate, permit or authorization in this state at the time of a disciplinary action in another reporting state, in the absence of justifying evidence to the contrary, there shall be a rebuttable presumption that the sanction proposed in any such proceeding will be comparable to that in the reporting state; however, no such presumption shall exist for those who are applying for licensure, certification, permit or authorization in this state during or after the time the disciplinary action in the other state is pending or has become final. If a board, council, committee, agency, or regulatory program created pursuant to chapters 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31 of this title or title 68, chapter 140 denies, restricts or conditions a licensure, certification, permit or authorization based on a disciplinary action in another state, the applicant shall, upon written request, filed within thirty (30) days of the date of the action on the application, be entitled to a contested case hearing.

Acts 1947, ch. 9, § 11; mod. C. Supp. 1950, § 6907.11 (Williams, § 6917.28); Acts 1955, ch. 57, § 1; 1975, ch. 355, §§ 5, 6; 1980, ch. 605, § 1; T.C.A. (orig. ed.), § 63-123; Acts 1984, ch. 937, § 75; T.C.A., § 63-1-123; Acts 2001, ch. 286, §§ 1, 2; 2010, ch. 1043, § 4; 2020, ch. 594, § 5.

Amendments. The 2020 amendment substituted “board, council, committee, agency, or regulatory program created pursuant to chapters 3, 4, 5, 6, 7, 8, 9, 10, 11,  12,  13, 14,  16, 17, 18, 19, 22, 23,  24,  25,  26, 27, 28,  29, 30, and 31” for “board, council, committee or agency created pursuant to chapters 4, 5, 7, 9, 11 and 12” in the introductory paragraph of (a)(1) and the second sentence of (b).

Effective Dates. Acts 2020, ch. 594, § 9. March 20, 2020.

Cross-References. Ambulatory surgical care centers terminating pregnancies, licensing, § 68-11-223.

Parental consent for abortions by minors, title 37, ch. 10, part 3.

Textbooks. Tennessee Jurisprudence, 15 Tenn. Juris., Injunctions, § 15.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

Attorney General Opinions. A proposed amendment to T.C.A. § 63-1-120, which would add a new subdivision regarding health care professionals who fail to comply either with any federal or state direct or guaranteed loan or with service requirements of any federal or state loan allowing forgiveness of debt in exchange for a period of service, would not violate the equal protection clauses of the United States or Tennessee constitutions, OAG 02-059, 2002 Tenn. AG LEXIS 64 (5/6/02).

NOTES TO DECISIONS

1. Constitutionality.

Legislature did not exceed constitutional powers in providing that violation of medical arts statute is not only punishable as misdemeanor, but may be enjoined by chancery court, so that defendant penalized for contempt of court rather than for violation of statute could not complain of double jeopardy. Short v. State Licensing Board for Healing Arts, 193 Tenn. 389, 246 S.W.2d 56, 1952 Tenn. LEXIS 304 (1952).

2. Scope of License.

There was material and substantial evidence to support the findings of the state licensing board for the healing arts that a chiropractor exceeded the scope of his license and invaded the field of medicine by making pap smears and by drawing blood for the purposes of diagnosing various human diseases and ailments which were unrelated to chiropractic practice. Spunt v. Fowinkle, 572 S.W.2d 259, 1978 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1978).

3. Manner of Enforcement.

Complainants were not entitled to assail the provisions of a statute providing for revocation or suspension of certificates and licenses of optometrists as violating due process without a showing that the manner of enforcement as authorized by this section amounted to a denial of due process. Seawell v. Beeler, 199 Tenn. 438, 287 S.W.2d 54, 1956 Tenn. LEXIS 342 (1956).

63-1-121. Enjoining violations.

  1. The division, in addition to the powers and duties expressed in this chapter with respect to the denial of a license, denial of certificate of registration and suspension or revocation of a license, is empowered to petition any circuit or chancery court having jurisdiction of any person within this state who is practicing without a license or to whom a license has been denied, or to whom a certificate of registration has been denied or whose license has been suspended or revoked by action of the division, to enjoin such person from continuing to practice the healing arts, or any branch thereof, within this state.
  2. Jurisdiction is conferred upon the circuit and chancery courts of this state to hear and determine all such causes as equity causes and exercise full and complete jurisdiction in such injunctive proceedings; but nothing in this section shall be construed as conferring criminal jurisdiction upon any court not now possessing such criminal jurisdiction, nor shall any such court, as an incident to the injunctive proceedings authorized in this section, have the power to assess the criminal penalties set out in this chapter.

Acts 1947, ch. 9, § 12; C. Supp. 1950, § 6907.12 (Williams, § 6917.29); T.C.A. (orig. ed.), § 63-125; Acts 1984, ch. 937, § 77; T.C.A., § 63-1-125.

Compiler's Notes. Former § 63-1-121 (Acts 1947, ch. 9, § 15; C. Supp. 1950, § 6907.15 (Williams, § 6917.32); Acts 1953, ch. 113, § 8; 1976, ch. 806, § 1 (99); T.C.A. (orig. ed.), § 63-121), concerning compensation of board members and payment of expenses, was repealed by Acts 1984, ch. 937, § 73.

63-1-122. Standard of care.

For purposes of any action before any board, committee, council, or other agency created pursuant to this title or title 68, in which the standard of care is at issue, members of such a board, committee, council, or agency are entitled to rely upon their own expertise in making determinations concerning the standard of care and are not subject to voir dire concerning such expertise. The standard of care for such actions is a statewide standard of minimal competency and practice; provided, however, that to sustain actions based upon a violation of this standard of care, the board, committee, council, or other agency must, absent admissions or other testimony to the effect that the standard of care was violated, articulate the standard of care in its deliberations. The provisions of title 29, chapter 26, and specifically § 29-26-115(a), concerning the locality rule, do not apply to actions taken pursuant to this title or title 68.

Acts 2017, ch. 240, § 4.

Compiler's Notes. Former § 63-1-122 (Acts 1947, ch. 9, § 10; C. Supp. 1950, § 6907.10 (Williams, § 6917.27); T.C.A. (orig. ed.), § 63-122; Acts 1984, ch. 937, § 74; T.C.A. § 63-1-122), concerning the enforcement of regulatory laws designed to prevent unlawful practices of the healing arts, was repealed by Acts 2010, ch. 1043, § 5, effective June 11, 2010.

Effective Dates. Acts 2017, ch. 240, § 6.  May 2, 2017.

63-1-123. Penalties.

  1. Any person, except those expressly exempted from this chapter by § 63-1-110 or § 63-1-111 who practices the healing arts as defined in this chapter, or any branch thereof, without first complying with this chapter, including all laws now in force regulating the practice of the various branches of the healing arts, and any person who violates this chapter commits a Class B misdemeanor.
  2. Each time any person practices the healing arts, or any branch thereof, without meeting all the requirements of laws now in force and of this chapter constitutes a separate offense. Any person filing or attempting to file as that person's own a diploma or license of another or a forged affidavit of identification commits a felony and is subject to the punishment prescribed by law for the crime of forgery.

Acts 1947, ch. 9, § 13; C. Supp. 1950, § 6907.13 (Williams, § 6917.30); T.C.A. (orig. ed.), § 63-126; T.C.A. § 63-1-126; Acts 1989, ch. 591, § 112.

Cross-References. Forgery, §§ 39-14-114, 39-14-115.

Penalty for Class B misdemeanor, § 40-35-111.

63-1-124. Citizen member.

The governor shall appoint one (1) citizen member to each health-related board that does not have a citizen as a part of its membership. The term of each such citizen member shall be the same as other members of the respective board to which such person is appointed. As used in this section, “citizen member” means a person who is appointed to serve on a board and who does not engage in any profession, business or activity subject to regulation by the board.

Acts 1993, ch. 181, § 1.

Compiler's Notes. Former § 63-1-124 (Acts 1947, ch. 9, § 11; C. Supp. 1950, § 6907.11 (Williams, § 6917.28); T.C.A. (orig. ed.), § 63-124), concerning procedure for suspension or revocation, and judicial review, was repealed by Acts 1984, ch. 937, § 76.

63-1-125. Kenneth and Madge Tullis, MD, Suicide Prevention Training Act.

  1. This section shall be known and may be cited as the “Kenneth and Madge Tullis, MD, Suicide Prevention Training Act.”
  2. As used in this section:
    1. “Board” means a health-related board created in this title or title 68 and includes the:
      1. Board for professional counselors, marital and family therapists, and clinical pastoral therapists, created by § 63-22-101;
      2. Board of social work licensure, created by § 63-23-101;
      3. Board of alcohol and drug abuse counselors, created by § 68-24-601; and
      4. Board of occupational therapy, created by § 63-13-216; and
    2. “Training program” means an empirically supported training program that covers the following elements:
      1. Suicide prevention;
      2. Suicide assessment and screening;
      3. Suicide treatment;
      4. Suicide management; and
      5. Suicide postvention.
  3. The department of mental health and substance abuse services shall:
    1. Develop, in collaboration with the Tennessee Suicide Prevention Network, a model list of training programs;
    2. When developing the model list, consider training programs of at least two (2) hours in length that are based on expert consensus and adhere to high standards of suicide prevention;
    3. When developing the model list, consult with the boards; public and private institutions of higher education; experts in suicide prevention, assessment, treatment, management, and postvention; and affected professional associations; and
    4. Report, in collaboration with the Tennessee Suicide Prevention Network, the model list of training programs to the department of health no later than December 15, 2017.
  4. A board may approve a training program that excludes an element described in the definition of training program if the element is inappropriate for the profession in question or inappropriate for the level of licensure or credentialing of that profession based on the profession's scope of practice.
  5. Beginning January 1, 2020, each of the following professionals certified or licensed under this title or title 68 shall, at least once every four (4) years, complete a training program that is approved by rule by the respective boards:
    1. A social worker licensed under chapter 23 of this title;
    2. A marriage and family therapist, professional counselor, or pastoral counselor certified or licensed under chapter 22 of this title;
    3. An alcohol and drug abuse counselor certified under title 68, chapter 24; and
    4. An occupational therapist licensed under chapter 13 of this title.
  6. A professional listed in subsection (e) applying for initial licensure or certification on or after January 1, 2020, is not required to complete the training program required by this section for two (2) years after initial licensure or certification if the professional can demonstrate successful completion of a two-hour academic training program that meets criteria established by the profession's board and that was completed no more than two (2) years prior to the application for initial licensure or certification.
  7. The hours spent completing the training program under this section count toward meeting any applicable continuing education requirements for each profession.
  8. Nothing in this section expands or limits the scope of practice of any profession regulated under this title or title 68.

Acts 2017, ch. 396, § 1; 2019, ch. 131, § 1.

Code Commission Notes.

Acts 2017, ch. 396, § 1 enacted this section as § 63-1-122 but the section has been redesignated as § 63-1-125 by the authority of the code commission.

Compiler's Notes. Acts 2017, ch. 396, § 2, which enacted this section, provided that the department of health, the department of mental health and substance abuse services, and each board that governs professionals subject to the act are authorized to promulgate rules to effectuate the purposes of this act. All rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in Tennessee Code Annotated, Title 4, Chapter 5.

For the Preamble to the act concerning training health professionals in suicide prevention, please refer to Acts 2017, ch. 396.

Amendments. The 2019 amendment substituted “at least once every four (4) years,” for “at least once every five (5) years,” in (e).

Effective Dates. Acts 2017, ch. 396, § 3. May 18, 2017.

Acts 2019, ch. 131, § 2. April 9,  2019.

63-1-126. Refusal to submit to drug test or testing positive for any drug violation of practitioner's practice act.

  1. As used in this section:
    1. “Confirmed drug test” means a confirmed test as defined in § 50-9-103;
    2. “Drug” means a drug as defined in § 50-9-103;
    3. “Employer” means a covered employer, as defined in § 50-9-103, that is a healthcare facility licensed under title 68, chapter 11, part 2, or any other healthcare employer that employs healthcare practitioners; and
    4. “Healthcare practitioner” or “practitioner” means any person required to be licensed, permitted, certified, or authorized:
      1. Under this title by a board or committee under the division of health-related boards specified in § 68-1-101(a)(8), who has humans for patients; or
      2. Under title 68, chapter 24, part 6; or
      3. Under title 68, chapter 140.
  2. A healthcare practitioner violates the practitioner's practice act by refusing to submit to a drug test or testing positive for any drug on any government or private sector preemployment or employer-ordered confirmed drug test for an employer when the practitioner does not have a lawful prescription for using the drug or a valid medical reason for using the drug.
      1. If a healthcare practitioner refuses to submit to a drug test or tests positive for any drug on any government or private sector preemployment or employer-ordered confirmed drug test for a covered employer, then this section shall apply to the practitioner.
      2. The practitioner shall be given three (3) business days from the time of notification to the practitioner of the confirmed test result to:
        1. Produce a lawful prescription for the drug or a valid medical reason for using the drug to the employer; or
        2. Report to the substance abuse peer assistance or treatment program of the appropriate board for the practitioner.
      3. So long as the practitioner obtains and maintains the advocacy of the substance abuse peer assistance or treatment program, unless otherwise required by law, the employer is not required to notify the appropriate board for the practitioner of the violation of the practitioner's practice act.
      1. Whenever a healthcare practitioner who has been referred by the practitioner's employer or who has self-reported to the substance abuse peer assistance or treatment program of the appropriate board pursuant to subdivision (c)(1) fails to obtain or maintain the advocacy of the program, the program shall report the practitioner to the appropriate board concerning the violation of the practitioner's practice act.
        1. So long as the practitioner complies with the terms and conditions of a referral to a substance abuse peer assistance or treatment program, the practitioner's license or certificate shall not be suspended or revoked by the appropriate board for a positive result on a confirmed drug test or a refusal to submit to a drug test.
        2. The board shall suspend the license, certificate, permit, or authorization of a healthcare practitioner who has been referred to the substance abuse peer assistance or treatment program pursuant to this subsection (c) when the practitioner fails to comply with the terms and conditions of the program.
        3. The board is not prohibited from taking any other disciplinary action authorized by law for conduct other than a positive result on a confirmed drug test or a refusal to submit to a drug test.
        4. A substance abuse peer assistance or treatment program shall promptly report any failure of a practitioner who has reported to the program pursuant to this subsection (c) to maintain compliance with the terms and conditions of the program to the appropriate licensing board.
  3. Any drug test used for action pursuant to this section shall comply with the requirements of title 50, chapter 9. The employer of the healthcare practitioner shall promptly report, as determined by rule and subject to subsection (c), a practitioner who tests positive for any drug on a confirmed drug test, or who refuses to submit to a drug test, to the department.
  4. The commissioner of health is authorized to promulgate rules to effectuate the purposes of this section. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2017, ch. 481, § 1.

Compiler's Notes. Former § 63-1-126 was transferred to § 63-1-123 in 1986.

Effective Dates. Acts 2017, ch. 481, § 5. July 1, 2017.

63-1-127. Sharing of information concerning substance abuse by healthcare practitioner with other quality improvement committees.

A quality improvement committee, as defined in § 63-1-150, may share information concerning substance abuse by a healthcare practitioner licensed or certified under this title with another quality improvement committee pursuant to § 63-1-150(d)(3) or § 68-11-272(c)(3) in furtherance of the functions of the committees.

Acts 2017, ch. 481, § 2.

Compiler's Notes. Former § 63-1-127 was transferred to § 63-1-115 in 1986.

Effective Dates. Acts 2017, ch. 481, § 5. July 1, 2017.

63-1-128. Emergency action not requiring prior approval of attorney general and reporter.

Notwithstanding any law, rule, or policy of a board or the department of health, emergency action by the department or the board under § 4-5-320(c) shall not require the prior approval of the attorney general and reporter.

Acts 2017, ch. 481, § 3.

Compiler's Notes. Former § 63-1-128 was transferred to § 63-1-116 in 1986.

Effective Dates. Acts 2017, ch. 481, § 5. July 1, 2017.

63-1-129. Solicitation of accident and disaster victims by health care prescribers prohibited — Exceptions.

  1. Health care prescribers, their employees, agents, or independent contractors shall not conduct in-person solicitation, telemarketing, or telephonic solicitation of victims of an accident or disaster, for the purpose of marketing services of the healing arts related to the accident or disaster, unless:
    1. The health care prescriber has a family or prior professional relationship with the victim; or
    2. The solicitation is carried out more than thirty (30) days after the date of the accident or disaster.
  2. Health care prescribers shall maintain:
    1. Telemarketing transcripts for a period of two (2) years following their utilization; and
    2. A log of contacts for a period of two (2) years following a telemarketing encounter.
  3. This section does not prohibit solicitation by targeted direct-mail advertising or other forms of written, radio, or television advertising, as long as the advertising does not involve coercion, duress, or harassment and is not false, deceptive, or misleading.
    1. Any agreement to pay a health care prescriber for services that were rendered by the health care prescriber as a direct result of a violation of this section is void and unenforceable. No person may collect or pursue collection for any debt arising from such an agreement.
    2. A patient or person who paid on behalf of a patient is entitled to a complete refund of any money paid for services that were rendered by a health care prescriber as a direct result of a violation of this section.
  4. The division is authorized to petition any circuit or chancery court having jurisdiction to enjoin any person who is violating this section. No injunction bond shall be required of the division in such proceedings, and jurisdiction is conferred upon the circuit and chancery courts of this state to hear such cases.

Acts 2018, ch. 638, § 1.

Compiler's Notes. Former § 63-1-129 (Acts 1980, ch. 851, §§ 7, 12; 1980, ch. 858, § 2; T.C.A., § 63-129), concerning nurse practitioners, was repealed by Acts 1984, ch. 937, § 80.

Acts 2018, ch. 638, § 2 provided that the act, which enacted this section, shall apply to violations occurring on or after July 1, 2018.

Effective Dates. Acts 2018, ch. 638, § 2. July 1, 2018.

63-1-130. Denial of license for prior criminal prosecution prohibited.

  1. As used in this section, “licensing authority” means any state department, board, commission, or agency that issues any license, certificate, or registration for an individual to engage in an occupation, profession, business, or trade in this state, including to those licensing authorities that have statutory authority to deny, suspend, or revoke a license for felonies or misdemeanors of moral turpitude.
    1. Subject to the exemptions in this section and unless prohibited by federal law, a licensing authority shall not deny an application for a license, certificate, or registration, or refuse to renew a license, certificate, or registration due to a prior criminal conviction that does not directly relate to the applicable occupation, profession, business, or trade.
    2. Prior to denying an application for a license, certificate, or registration on the basis of a criminal conviction, or prior to the refusal to renew a license, certificate, or registration on the basis of a criminal conviction, the licensing authority shall notify the applicant, licensee, certificate holder, or registrant of the licensing authority's determination in writing via certified mail, facsimile transmission, or email. The written notification shall include the licensing authority's justification for denial or refusal to renew in accordance to subdivision (b)(4)(A). The determination must state the earliest date upon which the applicant is eligible to reapply for the license, certificate, or registration.
    3. Prior to submitting the application necessary to obtain a license, certification, or registration an individual may request written notice from the licensing authority from which they seek to obtain a license, certification, or registration concerning the individual's qualification to obtain the license, certificate, or registration, based on the individual's criminal history. If the licensing authority determines that an individual is disqualified due to the individual's criminal history, the licensing authority must provide the individual with a written notification that sets forth the reasons for its determination and its justification in accordance with subdivision (b)(4)(A). The written notice as to the individual's qualifications to obtain a license, certificate, or registration must be limited to the individual's criminal history and should not be construed as prohibiting the licensing authority from denying an application on other grounds. This determination shall apply exclusively to the individual and shall not be construed as an advisory or formal opinion of the licensing authority.
      1. In considering whether to deny an application for a license, certificate, or registration to an applicant, or whether to refuse to renew a license, certificate, or registration, on the basis of a criminal conviction, the licensing authority must consider:
        1. The nature and seriousness of the crime for which the individual was convicted;
        2. The length of time since the commission of the crime;
        3. The relationship between the nature of the crime and the purposes of regulating the occupation, profession, business, or trade for which the license, certificate, or registration is sought;
        4. The relationship between the crime and the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation, profession, business, or trade;
        5. Any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against the relationship of crime to the occupation, profession, business, or trade; and
        6. Any applicable federal laws regarding an individual's participation in the occupation, profession, business, or trade.
      2. If an applicant, licensee, certificate holder, or registrant's prior conviction was for a Class A felony, Class B felony, or Class C felony not defined under title 39, chapter 17, part 4, or if the felony conviction is for an offense for which the offender is required to register under the Tennessee Animal Abuser Registration Act, compiled in title 40, chapter 39, part 1; the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, compiled in title 40, chapter 39, part 2; or title 40, chapter 39, part 3, there shall be a rebuttable presumption that the conviction relates to the fitness of the applicant, licensee, certificate holder, or registrant engaged in the applicable occupation, profession, business, or trade.
  2. An individual, applicant, licensee, certificate holder, or registrant who receives written notice pursuant to subdivision (b)(2) or (b)(3) may file a petition within thirty (30) business days of the receipt of the notice in Davidson County chancery court. The licensing authority must demonstrate by a preponderance of the evidence that the individual, applicant, licensee, certificate holder, or registrant's conviction is related to the applicable occupation, profession, business, or trade.
  3. Nothing in this section shall be construed to prohibit a licensing authority created by this title from issuing a restricted or conditional license, if otherwise authorized to do so under law.
  4. Nothing in this section shall be construed to create a separate right to a contested case hearing that does not otherwise exist relative to the denial of the license, certificate, or registration under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  5. Nothing in this section applies to:
    1. The board of law examiners, created under § 23-1-101;
    2. The board of judicial conduct, created under § 17-5-201;
    3. The licensure of services and facilities operated pursuant to title 33, chapter 2, part 4, for the provision of mental health services, alcohol, and drug abuse prevention or treatment; for the provision of services for intellectual and developmental disabilities; and for personal support services;
    4. The certification of police officers under title 38, chapter 8;
    5. Any licensing authority created under titles 41, 48, 49, 56, and 71;
    6. The department of financial institutions, when acting as a licensing authority pursuant to title 45;
    7. Any license, certificate, or registration issued pursuant to the rules of the supreme court;
    8. The licensure of pain management clinics licensed pursuant to chapter 1, part 3 of this title; and
    9. The licensure of physicians under chapter 6 or 9 of this title.

Acts 2018, ch. 793, § 3.

Compiler's Notes. Acts 2018, ch. 793, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Fresh Start Act.”

Former § 63-1-130 was transferred to § 63-1-117 in 1986.

Effective Dates. Acts 2018, ch. 793, § 4. July 1, 2018.

63-1-131. Director — Appointment.

The commissioner of health shall appoint a director of the division of health related boards provided for in this section and §§ 63-1-132, 63-1-133, and 68-1-101.

Acts 1971, ch. 81, § 5; T.C.A., §§ 53-121, 68-1-601; Acts 2010, ch. 1043, § 6.

63-1-132. Director — Powers and duties.

  1. The director of the division of health related boards has the power, duty, and responsibility to:
    1. Employ all staff assigned or performing duties for the agencies attached to the division;
    2. Promulgate rules and regulations for all administrative functions and activities of the agencies attached to the division as well as all matters that affect more than one (1) of the agencies attached to the division with the approval of the agencies affected. In cases where multiple agencies are authorized to promulgate similar rules that apply to each of the agencies, the director is authorized to hold one (1) public rulemaking hearing and promulgate a single rule or a single chapter of rules, but only after receiving prior approval of the agencies affected;
    3. Employ, with the consent of the regulatory board concerned, all executive directors and consultants; the director may employ all other personnel necessary to carry out the function of all of the agencies attached to the division;
    4. Maintain a central filing system for official records and documents of all agencies attached to the division;
    5. Provide office space and necessary quarters for the agencies attached to the division;
    6. Assign personnel to staff such agencies in order to ensure the most efficient use of personnel; and
    7. Perform such other duties as the commissioner may prescribe, or as may be prescribed by law.
  2. Any employment of personnel or consultants by the division shall be in accordance with the rules, regulations and standards of the departments of human resources and finance and administration.

Acts 1971, ch. 81, § 6; T.C.A., § 53-122; Acts 1985, ch. 120, § 16; T.C.A., § 68-1-602; Acts 1994, ch. 569, § 1; 1996, ch. 659, § 1; 1996, ch. 754, § 3; 2010, ch. 1043, § 7.

Compiler's Notes. Acts 1996, ch. 754, § 3 purported to insert “or § 63-9-113” following “§ 63-6-204” near the middle of (c); however, as rewritten by Acts 1996, ch. 659, “§ 63-6-204” does not appear in (c). The amendment by ch. 754 is therefore deemed to be of no effect.

Attorney General Opinions. The division of health related boards of the Tennessee department of health does not have authority, absent specific legislation, to use screening panels for the various boards to assist with the processing and disposition of disciplinary cases, OAG 01-055, 2001 Tenn. AG LEXIS 47 (4/10/01).

Hiring of executive director of the board of pharmacy.  OAG 11-47, 2011 Tenn. AG LEXIS 49 (5/19/11).

63-1-133. Director — Member of agencies.

  1. The director of the division or the director's duly authorized representative shall be an ex officio, nonvoting member of each agency attached to this division and shall be entitled to attend all meetings of such agencies.
  2. All agencies attached to this division shall advise the director of any meeting at which official action will be taken at least forty-eight (48) hours prior to such meeting unless the director expressly waives such requirement.

Acts 1971, ch. 81, § 7; T.C.A., §§ 53-123, 68-1-603.

63-1-134. Penalty for violation of statute, rule or order — Recovery.

  1. With respect to any person required to be licensed, permitted or authorized by any board, commission or agency attached to the division of health related boards, each respective board, commission or agency may assess a civil penalty against such person in an amount not to exceed one thousand dollars ($1,000) for each separate violation of a statute, rule or order pertaining to such board, commission or agency. Each day of continued violation constitutes a separate violation.
  2. Each board, commission or agency shall by rule establish a schedule designating the minimum and maximum civil penalties that may be assessed under this section. In assessing civil penalties, the following factors may be considered:
    1. Whether the amount imposed will be a substantial economic deterrent to the violator;
    2. The circumstances leading to the violation;
    3. The severity of the violation and the risk of harm to the public;
    4. The economic benefits gained by the violator as a result of noncompliance; and
    5. The interest of the public.
    1. Civil penalties assessed pursuant to this section or any other section authorizing the assessment of civil penalties by any board, council or committee established in this title or title 68 that is attached to the department, unless otherwise provided by law, shall become final, due and payable on the date the order in which they are assessed becomes final pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided however, that the boards, councils, committees or the department is authorized to order or enter into agreements for the payment of assessed civil penalties in installments that are due and payable beyond the date on which the assessment becomes final.
    2. If the violator fails to pay an assessment when it becomes final or fails to pay according to the terms of an installment payment plan, the department, in addition to taking further action against the violator's license, may apply to the appropriate court for a judgment and seek execution of the judgment.
    3. Jurisdiction for recovery of such penalties shall be in the chancery court of Davidson County or the chancery court of the county in which all or part of the violations occurred.
  3. All sums recovered pursuant to this section shall be paid into the state treasury.

Acts 1989, ch. 389, § 2; 2007, ch. 196, § 1.

63-1-135. Expenditure estimates — Improvement recommendations.

    1. Before submitting an estimate of its expenditure requirements as provided in § 9-4-5103, the department of health shall consult with each board, commission or agency that is attached to the division of health related boards created under § 68-1-101 and is authorized or required to collect any fees.
    2. Any such board, commission or agency shall timely submit to the commissioner of health an itemized list of any improvements recommended for inclusion in the department's expenditure estimate.
    3. In the preparation of such estimate, the department shall clearly indicate the disposition of each improvement recommendation received under this section.
  1. The department shall transmit with its expenditure estimate a copy of each list of recommended improvements received under this section to the commissioner of finance and administration.

Acts 1989, ch. 523, § 181.

63-1-136. Additional powers and duties — Assistance to impaired health practitioners.

  1. Regulatory boards, commissions and agencies attached to the division of health related boards, in addition to other enumerated powers and duties, have as their purpose assistance in the rehabilitation of impaired health practitioners who are licensed, certified or registered by the respective regulatory boards, commissions and agencies.
  2. Regulatory boards, commissions and agencies attached to the division of health related boards, in addition to other enumerated powers and duties, have the power to enter into agreements, provide grants and make other arrangements with statewide nonprofit professional associations or their affiliated foundations to identify and assist impaired professionals who are licensed, registered or certified by the respective regulatory boards, commissions and agencies.
  3. Regulatory boards, commissions and agencies attached to the division of health related boards have the authority to accept and designate grants, public or private financial assistance and licensure fees to fund programs authorized in subsection (b) to assist impaired professionals. The provision of such grants shall not deem recipient peer assistance programs to be the functional equivalent of the state.
  4. All information, interviews, reports, statements, memoranda and other data furnished to a nonprofit professional association or its affiliated foundation and any findings, conclusions or recommendations resulting from the proceedings of such professional association or its affiliated foundation are privileged and confidential. The records of such proceedings of the affiliated foundation or association shall be used only in the exercise of proper functions of the regulatory board, commission or agency attached to the division of health related boards and shall not become public record nor be made available for court subpoena or discovery proceedings.
  5. If a regulatory board, commission or agency attached to the division of health related boards determines that an association or its affiliated foundation is not providing adequate services under this section, then the board, commission or agency may contract with another nonprofit organization in order to assist impaired professionals.
  6. Organizations that directly provide alcohol and drug treatment services or behavioral health services on an inpatient or outpatient basis for remuneration shall be prohibited from contracting with such board, commission or agency to provide a professional assistance program.

Acts 1992, ch. 541, § 1; 2003, ch. 388, §§ 1, 3.

Compiler's Notes. Acts 2003, ch. 388, § 2 provided that nothing in the act, which amended subsections (b), (c) and (d) and added subsection (e) and (f), shall interfere with any existing contract.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Applicability of procurement requirements when providing grants and entering into agreements to assist impaired professionals pursuant to T.C.A. § 63-1-136; applicability to grant contracts for peer assistance issued by health-related regulatory boards under T.C.A. § 63-1-136. OAG 14-98, 2014 Tenn. AG LEXIS 101 (10/30/14).

63-1-137. Funds — Deposits and disbursements.

  1. Notwithstanding any provision of law to the contrary, all moneys other than the state regulatory fee as provided for in § 9-4-5117 collected by any board attached to the division of health related boards shall be deposited in the state general fund and credited to a separate account for each such board.
  2. Disbursements from such accounts shall be made solely for the purpose of defraying expenses incurred in the implementation and enforcement of the board's area of regulation, including defraying costs to implement the Health Care Consumer Right-to-Know Act of 1998, compiled in chapter 51 of this title.
  3. No such expenses shall be paid from any other state funds other than provided for in § 9-4-5117.
  4. Funds remaining in board accounts at the end of any fiscal year shall not revert to the general fund but shall remain available for expenditure in accordance with law.

Acts 1992, ch. 830, § 1; 1995, ch. 446, § 3; 1999, ch. 373, § 1.

Code Commission Notes.

Former subsection (e), concerning amounts remaining in board accounts on June 30, 1994, was deemed obsolete and was deleted by the code commission in 2004.

Compiler's Notes. Section 4-3-1011, referred to in (a) and (c), was transferred to § 9-4-5117 by Acts 2013, ch. 454, § 13, effective May 16, 2013.

Acts 2012, ch. 880, § 28 provided that, notwithstanding any provision of the law to the contrary, no funds maintained in any of the accounts created pursuant to § 63-1-137 shall be used to pay any of the expenses incurred in acquiring hardware, software, or contracted services or employing personnel needed to implement and enhance the operation of the controlled substance monitoring database pursuant to the provisions of Acts 2012, ch. 880.

63-1-138. Screening panels.

  1. The division and each board, committee or council established in this title that does not already have authority to utilize screening panels and the medical laboratory board, the board of alcohol and drug counselors and the Tennessee emergency medical services board as established in title 68 may utilize one (1) or more screening panels in their investigative and disciplinary process to assure that complaints filed and investigations conducted are meritorious and to act as a mechanism for diversion to professional peer review organizations and/or impaired professionals associations or foundations of those cases that the boards, through established guidelines, deem appropriate.
  2. The activities of the screening panels and any mediation or arbitration sessions shall not be construed as meetings of an agency for purposes of the open meetings law, compiled in title 8, chapter 44, and shall remain confidential. The members of the screening panels, mediators and arbitrators have a deliberative privilege and the same immunity as provided by law for the boards and are not subject to deposition or subpoena to testify regarding any matter or issue raised in any contested case, criminal prosecution or civil lawsuit that may result from or be incident to cases processed before them.
  3. The screening panel has the authority to administer oaths to witnesses. Any documents or records produced at the screening panel shall be exempt from the public records law, compiled in title 10, chapter 7, until there is a filing of a notice of charges and such documents or records form the basis for such filing of a notice of charges.
  4. Members of a screening panel may be drawn from among the membership of the relevant board, or members may be appointed by the relevant board. Nonboard members shall meet the requirements of membership for the relevant board and may include a consumer member. A board member serving on a panel shall not participate in a contested case involving any matter heard by the panel.
  5. Each screening panel shall be instructed as to the statutes, rules, regulations and philosophies of the relevant board as it pertains to disciplinary action and to the procedures to be followed by the panels. Each screening panel shall be provided a copy of Rule 31 of the Rules of the Tennessee Supreme Court for review by members of the screening panel for general guidance as to the principles of mediation and alternative dispute resolution.
  6. A board does not have authority to compel any party to participate in a screening panel, and no prejudice will be incurred if the party chooses not to participate or to accept the offer of the screening panel.

Acts 2001, ch. 322, § 1; 2005, ch. 234, § 1.

Compiler's Notes. Former § 63-1-138 (Acts 1994, ch. 803, § 1), concerning games of the XXVIth Olympiad and the Xth Paralympiad, was repealed by Acts 1994, ch. 803, § 1, effective December 31, 1996.

Cross-References. Confidentiality of public records, § 10-7-504.

63-1-139. Rules and regulations.

  1. Each board, commission, committee, agency or other governmental entity created pursuant to this title, title 68, chapter 24, and title 68, chapter 140, part 3 shall notify each applicant for a license, certification or registration from such board, commission, committee, agency or other governmental entity where to obtain a copy of any statutes, rules, policies and guidelines setting forth the prerequisites for such license, certification or registration and shall, upon request, make available to the applicant a copy of such statutes, rules, policies and guidelines.
  2. Each board, commission, committee, agency or other governmental entity created pursuant to this title, title 68, chapter 24 and title 68, chapter 140, part 3 shall notify each holder of a license, certification or registration from the board, commission, committee, agency or other governmental entity of changes in state law that impact the holder and are implemented or enforced by the entity, including newly promulgated or amended statutes, rules, policies and guidelines. The notification required by this subsection (b) may be satisfied by the board, commission, committee, agency, or other governmental entity posting on its website changes in state law that impact the holder and are implemented or enforced by the entity, including newly promulgated or amended statutes, rules, policies, and guidelines. The website posting must be made within thirty (30) days of the effective date of the change and maintained on the website until at least two (2) years after the effective date of the change.
  3. Each board, commission, committee, agency or other governmental entity created pursuant to this title, title 68, chapter 24 and title 68, chapter 140, part 3 shall establish and maintain a link or links on the entity's website to the statutes, rules, policies and guidelines that are implemented or enforced by the entity and that impact an applicant for, or a holder of, a license, certification or registration from the entity.
    1. Each board, commission, committee, agency or other governmental entity created pursuant to this title, title 68, chapter 24 and title 68, chapter 140, part 3 shall allow each holder of a license, certification or registration from the board, commission, committee, agency or other governmental entity to have the option of being notified by electronic mail of:
      1. Renewals of the holder’s license, certification or registration;
      2. Any fee increases;
      3. [Deleted by 2020 amendment.]
      4. Any meeting where changes in rules or fees are on the agenda. For purposes of this subdivision (d)(1)(D), the electronic notice shall be at least forty-five (45) days in advance of the meeting, unless it is an emergency meeting then the notice shall be sent as soon as is practicable.
    2. Each board, commission, agency or other governmental entity created pursuant to this title, title 68, chapter 24 and title 68, chapter 140, part 3 shall notify each holder of a license, certification or registration of the availability of receiving electronic notices pursuant to subdivision (d)(1) upon issuance or renewal of the holder’s license, certification or registration.
  4. Each board, commission, committee, agency or other governmental entity created pursuant to this title, title 68, chapter 24 and title 68, chapter 140, part 3 shall have the authority to accept license applications and renewals electronically as if the same were submitted in hard copy format.

Acts 1998, ch. 1088, § 2; 2008, ch. 1070, §§ 3-5; 2012, ch. 952, § 2; 2014, ch. 949, § 3; 2020, ch. 594, §§ 6-8.

Compiler's Notes. Acts 2008, ch. 1070, § 13 provided that each entity subject to the act, which amended subsection (a) and added subsections (b) and (c), shall promulgate rules to effectuate the purposes of the act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2020 amendment, in (b), deleted “, upon the issuance and upon each renewal of the holder's license, certification or registration” following “policies and guidelines” at the end of the first sentence and added the second and third sentences; and deleted (d)(1)(C), which read: “Any changes in state law that impact the holder and are implemented or enforced by the entity, including newly promulgated or amended statutes, rules, policies and guidelines; and”.

Effective Dates. Acts 2020, ch. 594, § 9. March 20, 2020.

NOTES TO DECISIONS

1. Notice.

Trial court properly reversed the determination of the Department of Health that a physician assistant (PA) failed to register with the Controlled Substances Monitoring Database (CSMD) and to check the CSMD before prescribing controlled substances because the record did not contain substantial and material evidence to support a finding the PA had notice that she was required to register with the CSMD and check with the CSMD before prescribing controlled substances. Tenn. Dep't of Health v. Sparks, — S.W.3d —, 2019 Tenn. App. LEXIS 439 (Tenn. Ct. App. Sept. 6, 2019).

63-1-140. State citizenship of all board members.

All members of any board, commission or council that licenses, certifies or regulates any profession or occupation shall, during the time of their respective appointments, be citizens of this state. The appointment of any member of any board, commission or council that licenses or certifies any profession or occupation shall terminate when Tennessee is no longer the domicile of such member.

Acts 1998, ch. 1088, § 4.

63-1-141. Default on student loans by members of the healing arts profession.

    1. Upon receiving a copy of a final order as provided in subsection (b) from the Tennessee student assistance corporation (TSAC) or a guarantee agency that has an agreement with the United States secretary of education (guarantee agency), each board, commission, committee, agency or other governmental entity (licensing authority) created pursuant to this title shall suspend, deny or revoke the license of, or take other such appropriate disciplinary action, against any person (also referred to as the debtor), who has defaulted on a repayment or service obligation under any federal family education loan program, the federal Higher Education Act of 1965, a student loan guaranteed or administered by the Tennessee student assistance corporation or any other state or federal educational loan or service-conditional scholarship program.
    2. Notwithstanding subdivision (a)(1), a licensing authority may elect not to suspend, deny, or revoke the license of a person if the default or delinquency is the result of a medical hardship that prevented the person from working in the person's licensed field and the medical hardship significantly contributed to the default or delinquency.
    1. Each board, commission, committee, agency or other governmental entity created pursuant to this title shall accept any determination of default from TSAC or a guarantee agency, after TSAC or the guarantee agency has afforded a debtor an opportunity to be heard in accordance with subdivision (b)(2); and such board, commission, committee, agency or other governmental entity shall rescind any disciplinary action and restore any license or certificate upon receiving notice from such corporation or guarantee agency that the person has agreed to serve such person's obligation or is in compliance with an approved repayment plan.
      1. Unless a debtor has made satisfactory arrangements according to the lender, TSAC or the guarantee agency, which may include administrative wage garnishment, voluntary payment arrangements or deferment/forbearance, then the debtor shall be regarded as delinquent or in default. If a debtor is delinquent or in default on a repayment or service obligation under a guaranteed student loan identified in subsection (a) or such debtor has failed to enter into a payment plan or comply with a payment plan previously approved by TSAC or the guarantee agency, then TSAC or the guarantee agency shall issue to such debtor a notice of intent to file an order with the appropriate licensing authority to suspend, deny or revoke the debtor's license or certificate. The notice must:
        1. Be served upon the debtor personally or by certified mail with return receipt requested; and
        2. State that the debtor's license or certificate will be suspended, denied or revoked ninety (90) days after service, unless within that time the debtor:
          1. Pays the entire debt stated in the notice;
          2. Enters into a payment plan or complies with a payment plan previously entered into and approved by TSAC or the guarantee agency; or
          3. Requests a hearing before TSAC or the guarantee agency.
      2. Any such hearing request by the debtor shall be made in writing and must be received by TSAC or the guarantee agency within twenty (20) days of the date the notice is served.
      3. TSAC, or the guarantee agency, upon receipt of a request for a hearing from the debtor, shall schedule a hearing to determine whether suspension, denial or revocation of the debtor's license or certificate is appropriate. The debtor's license or certificate may not be suspended, denied or revoked until a determination is reached following the hearing. The only issues that may be determined in such hearing are:
        1. The amount of the debt, if any;
        2. Whether the debtor is delinquent or in default;
        3. Whether the debtor has entered into a payment plan or the debtor is willing to enter into a payment plan or to comply with a payment plan previously entered into and approved by TSAC or the guarantee agency; and
        4. Whether the debtor's default or delinquency is the result of a medical hardship that prevented the debtor from working in the debtor's licensed field and the medical hardship significantly contributed to the default or delinquency.
      4. If a debtor fails to respond to such notice of intent, fails to timely request a hearing or fails to appear at a regularly scheduled hearing, the debtor's defenses, objections or request for a payment plan or compliance with a payment plan may be determined to be without merit, and TSAC or the guarantee agency shall enter a final decision and order, requesting suspension, denial or revocation of the debtor's license or certificate and further requesting the licensing authority to order the debtor to refrain from engaging in the licensed activity or activity for which a certificate has been issued. TSAC or the guarantee agency shall send a copy of such order to the licensing authority and the debtor.
      5. All such administrative hearings shall be conducted in the same manner as those conducted pursuant to §§ 36-5-703 and 36-5-704.
        1. When TSAC or the guarantee agency determines that the debt is paid in full or the debtor has entered into a payment plan or complied with a payment plan previously approved by TSAC or the guarantee agency, TSAC or the guarantee agency shall terminate the order suspending, denying or revoking the license or certificate. TSAC or the guarantee agency shall send a copy of the order terminating the suspension, denial or revocation to the licensing authority and the debtor. Notwithstanding any other provision of law, rule or regulation to the contrary, when the license or certificate is reinstated, the licensing authority shall not impose a reinstatement fee that exceeds fifty dollars ($50.00).
        2. Entry of an order terminating suspension, denial or revocation of a license or certificate does not limit the ability of TSAC or the guarantee agency to issue a new order suspending, denying or revoking the license or certificate of the same debtor in the event of another delinquency or default.
      6. TSAC is authorized to promulgate necessary rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this subsection (b).
  1. Each board, commission, committee, agency or other governmental entity created pursuant to this title shall promulgate rules and regulations to effectuate the purposes of this section.

Acts 1999, ch. 476, § 1; 2018, ch. 744, §§ 11, 12.

Compiler's Notes. The federal Higher Education Act of 1965, referred to in this section, is compiled primarily at 20 U.S.C. § 1001 et seq.

Amendments. The 2018 amendment, effective January 1, 2019, added (a)(2) and (b)(2)(C)(iv).

Effective Dates. Acts 2018, ch. 744, § 13. January 1, 2019; provided that for purposes of promulgating rules, the act took effect April 18, 2018.

63-1-142. Temporary authorization to practice.

  1. Any board regulated by this title may authorize any of its members or its designee to conduct a review of the qualifications of an applicant for a license to practice such profession in this state and to make an initial determination as to whether the applicant has met all the requirements for licensure. If the board member or board designee determines that the applicant has met all the requirements for a license, the board member or board designee has the authority to issue to such applicant a temporary authorization to practice, and, once the temporary authorization is issued, the applicant is then authorized to practice such profession in this state until the board makes a final decision on the application for a license. Such temporary authorization, once issued, shall be deemed to be a valid license for all purposes, granting to the applicant all rights that would attach if the person had been issued a permanent license at that time. The board may authorize the use of this procedure with respect to an applicant for an initial license, temporary permit, temporary license, renewal of license and license reinstatement if the issuance of temporary permits, temporary licenses, renewal of license and license reinstatement is otherwise authorized by such board's practice statutes. In no event shall the temporary authorization issued pursuant to an initial determination made by a board member or a board designee be effective for longer than a six-month period measured from the date of issuance. The applicant shall not utilize this process for the same reason more than once.
  2. If temporary authorization, pursuant to subsection (a), is issued to an applicant and if the subsequent decision of the board is to deny the application based upon a determination that the applicant has not complied with all the requirements for licensure, then the initial approval from that point forward shall immediately become null and void, and the applicant shall be notified immediately. In this event, the doctrine of estoppel shall not apply against the state based upon its issuance of temporary authorization and its subsequent denial of licensure.

Acts 1999, ch. 518, § 1.

63-1-143. Notification of vacancy — Termination due to vacancy.

  1. Each board, commission, committee, agency or other governmental entity created pursuant to this title incurring a vacancy shall notify the appointing authority in writing within ninety (90) days after the vacancy. All vacancies, other than ex officio members, on any board, commission, committee, agency or other governmental entity created pursuant to this title shall be filled by the appointing authority within ninety (90) days of receiving written notice of the vacancy and sufficient information is provided for the appointing authority to make an informed decision in regard to filling such vacancy. If sufficient information has been provided and a board, commission, committee, agency or other governmental entity created pursuant to this title has more than one (1) vacancy that is more than one hundred eighty (180) days in duration, such board, commissioner, committee, agency or other governmental entity shall report to the house and senate government operations committees why such vacancies have not been filled.
  2. If more than one-half (½) of the positions on any board, commission, committee, agency or other governmental entity created pursuant to this title are vacant for more than one hundred eighty (180) consecutive days, such board, commission, committee, agency or other governmental entity shall terminate. Such board, commission, committee, agency or other governmental entity shall wind up its affairs pursuant to § 4-29-112. If a board, commission, committee, agency or other governmental entity created pursuant to this title is terminated pursuant to this subsection (b), it shall be reviewed by the evaluation committees pursuant to the Uniform Administrative Procedures Act, compiled at title 4, chapter 5, before ceasing all its activities. Nothing in this section shall prohibit the general assembly from continuing, restructuring, or reestablishing a board, commission, committee, agency or other governmental entity created pursuant to this title.

Acts 2000, ch. 835, § 2.

Compiler's Notes. Acts 2000, ch. 835, § 7 provided that the act, which enacted this section, shall not change any procedure, manner, or time which members of the Tennessee motor vehicle commission who are selected from a list of qualified persons submitted by motor vehicle manufacturers licensed in Tennessee or their consumer replacements are appointed pursuant to § 55-17-103.

63-1-144. Payment of costs of investigation and prosecution.

  1. In addition to any existing authority regarding the requirement to pay costs in disciplinary proceedings, when the division or any board, council or committee created pursuant to this title and/or title 68, chapters 24 and 29 and regulated under the authority of the department of health imposes sanctions on a license or certificate holder in any disciplinary contested case proceeding, the license or certificate holder may, at the discretion of the division, board, council or committee before which the contested case proceeding was held be required to pay the actual and reasonable costs of the investigation and prosecution of the case, which shall include, but not be limited to, the following:
    1. All costs absorbed by the division or attributed to and assessed against the board, council or committee by the division's bureau of investigations in connection with the prosecution of the matter including all investigator time, travel and lodging incurred during the prosecution;
    2. All costs absorbed by the division or assessed against the board, council or committee by the division for the use of the division facilities and personnel for prosecution of the matter;
    3. All costs assessed against the division, board, council or committee for the appearance fees, transcripts, time, travel and lodging of administrative law judges and court reporters and witnesses required in the prosecution of the matter; and
    4. All costs attributed to and assessed against the division, board, council or committee by the department's office of general counsel in connection with the prosecution of the matter, including all attorney and paralegal time, travel and lodging incurred during the prosecution of the matter.
  2. The division, board or committee shall include in any order in which the payment of costs has been assessed an amount that is the maximum amount owed by the license or certificate holder at the time the order is entered. Prior to the expiration of sixty (60) days from the effective date of the order, the division, council, board or committee shall send to the license or certificate holder, by certified mail, return receipt requested, and by regular United States mail, a final costs assessment that does not exceed the maximum amount in the order.

Acts 2003, ch. 102, § 1; 2007, ch. 265, § 1.

NOTES TO DECISIONS

1. Payment of Additional Costs.

Given the department's success, it was within the commissioner's designee's discretion to order appellants to pay the additional costs incurred on review, which was not unreasonable; there was no clear error or arbitrary or capricious action due to the increase in costs that resulted from the increased violations and increased discipline that resulted from review of the initial order. Ballard v. Tenn. Dep't of Health, — S.W.3d —, 2020 Tenn. App. LEXIS 207 (Tenn. Ct. App. May 8, 2020).

63-1-145. Rules and regulations regarding advertisement pertaining to board certification and specialty.

Consistent with this title, the boards of the respective branches of the healing arts shall promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and this title to regulate the nature, manner, content and extent of advertising and the use of titles by practitioners of such healing arts who are under the jurisdiction of such boards, including advertising pertaining to board certification and specialty. Those boards that have already adopted such rules and regulations are not required to adopt additional rules and regulations, unless and until deemed necessary and appropriate by those boards.

Acts 2005, ch. 467, § 4.

63-1-146. Rules and regulations regarding sanctions for violations.

Consistent with this title, the boards of the respective branches of the healing arts are hereby authorized to promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, which establish sanctions for violations of this chapter by members of the professions the boards regulate. Such sanctions may include civil penalties, suspension or revocation of license.

Acts 2005, ch. 467, § 5.

63-1-147. Authority to enter into arrangements for evaluating and guiding the development of the health care workforce to improve delivery of quality health care.

Any board of an allied health care profession, for allied health professionals as defined by United States Code, title 42, chapter 6A, subchapter V, part F, § 295p (42 U.S.C. § 295p), within the division of health related boards as set out in § 68-1-101, is authorized to enter into grants, agreements, scholarships or other arrangements with statewide nonprofit agencies or other state agencies for the purpose of evaluating and guiding the development of the education, distribution and availability of the allied health care workforce under the regulation of that board to provide a basis for improving the delivery of quality health care.

Acts 2006, ch. 558, § 1.

63-1-148. Covenants not to compete signed by healthcare providers.

  1. A restriction on the right of an employed or contracted healthcare provider to practice the healthcare provider's profession upon termination or conclusion of the employment or contractual relationship shall be deemed reasonable if:
    1. The restriction is set forth in an employment agreement or other written document signed by the healthcare provider and the employing or contracting entity; and
    2. The duration of the restriction is two (2) years or less and either:
      1. The maximum allowable geographic restriction is the greater of:
        1. A ten-mile radius from the primary practice site of the healthcare provider while employed or contracted; or
        2. The county in which the primary practice of the healthcare provider while employed or contracted is located; or
      2. There is no geographic restriction, but the healthcare provider is restricted from practicing the healthcare provider's profession at any facility at which the employing or contracting entity provided services while the healthcare provider was employed or contracted with the employing or contracting entity.
  2. An agreement entered into in conjunction with the purchase or sale of a healthcare provider's practice, or all or substantially all of the assets of the healthcare provider's practice, may restrict the healthcare provider's right to practice the healthcare provider's profession; provided, that the duration of the restriction and the allowable area of the restriction are reasonable under the circumstances. There shall be a rebuttable presumption that the duration and area of restriction agreed upon by the parties in such an agreement are reasonable.
  3. This section shall apply to healthcare providers licensed under chapters 3, 4, 5, 6, 8, 9 and 11 of this title.
  4. This section shall not apply to physicians who specialize in the practice of emergency medicine.

Acts 2007, ch. 487, § 1; 2008, ch. 891, § 1; 2010, ch. 851, § 1; 2011, ch. 218, §§ 1, 2.

Law Reviews.

Covenants Not to Compete: The Real Question for Enforcement, 47 U. Mem. L. Rev. 855 (2017).

Physician Non-Compete Agreements Revisited and Revived (Josh A. McCreary), 43 Tenn. B.J. 17 (2007).

Tax Subsidies, Third-Party-Payments, and Cross-Subsidization: America's Distorted Health Care Markets (William P. Kratzke), 40 U. Mem. L. Rev. 279 (2009).

63-1-149. Registry check.

  1. On and after October 1, 2010, before employing or contracting with any person who would be providing direct patient care, for whom a background check has not been completed, a health care professional licensed under any chapter of this title or title 68, chapters 24 and 140, shall initiate and perform a “registry check” which for the purposes of this section is defined as:
    1. A state-by-state look in any state in which the person has lived in the previous seven (7) years of the national sex offender public registry website coordinated by the United States department of justice, including, but not limited to, the sexual offender registry maintained by the Tennessee bureau of investigation pursuant to title 40, chapter 39, part 2; and
    2. Any adult abuse registry maintained for any state in which the person has lived in the previous seven (7) years; and
    3. The department of health's elder abuse registry established pursuant to title 68, chapter 11, part 10.
  2. Should an applicant be listed on any of the registries listed in subdivisions (a)(1)-(3), the health care professional shall not employ or contract with the person if the person would be providing direct patient care.
  3. A health care professional who complies with the requirements to perform registry checks under subsection (a), or relies on a documented representation provided by an entity with which the health care professional contracts that the person who will work in the office is not on any of these registries, shall not be subject to civil or criminal liability solely based upon the information provided through a registry check under this section. This immunity shall extend to a claim related to the professional's refusal to employ or contract with a person based on information obtained from a registry check.
  4. This section is not intended to apply to contracted, external staff who provide such services as cleaning services, maintenance of office or medical equipment or other services where direct patient contact is not intended.
  5. This section shall not apply to health care professionals licensed chapter 12 of this title.
  6. The department of health shall post no later than October 1, 2010, in a conspicuous location on its website as well as the website of each applicable licensing board a link to all potential databases the health care professional would be required to check pursuant to subsection (a). In addition, each applicable licensing board shall notify all of its licensees at least annually through board newsletters of their obligations under this section.

Acts 2010, ch. 1084, § 1.

63-1-150. Patient safety and quality improvement.

  1. This section shall not apply to §§ 63-4-118, 63-5-131, 63-10-402 — 63-10-405, 63-11-220, 63-12-138 and 68-11-272.
  2. It is the policy of this state to encourage the improvement of patient safety and quality and the evaluation of the quality, safety, cost, processes and necessity of healthcare services by healthcare providers and by other entities. This state further recognizes that certain protections must be available to these providers and entities to ensure that they are able to effectively pursue these measures.
  3. As used in this section:
    1. “Healthcare organization” means any:
      1. State or local health professional association or society;
      2. Professional assistance program providing, or attempting to provide, intervention, counseling, referral or other assistance to any healthcare provider or family of a healthcare provider directly related to and including the alcohol or drug impairment of a healthcare provider;
      3. Healthcare provider malpractice support group;
      4. Group practice that is engaged in the provision of healthcare services;
      5. Entity engaged in the provision of healthcare provider services or healthcare provider staffing to licensed healthcare entities, including hospitals;
      6. Professional healthcare foundation;
      7. Individual practice association made up of practices the members of which are engaged in the provision of health care;
      8. Health maintenance organization, preferred provider organization, hospital and medical service corporation, or accountable care organization as defined by § 3022 of the federal Patient Protection and Affordable Care Act, P.L. 111-148, as amended;
      9. Entity that contracts with a healthcare organization to perform any of the functions of a quality improvement committee;
      10. Any patient safety organization listed as such by the federal secretary of health and human services pursuant to § 924 of the Patient Safety and Quality Improvement Act of 2005, P.L. 109-41, as amended;
      11. University medical school or health science center; or
      12. Community mental health center as defined in § 33-1-101;
    2. “Healthcare provider” means any healthcare professional licensed, authorized, certified or regulated under this title, including, but not limited to, medical resident physicians, interns, and fellows participating in a training program of one (1) of the accredited medical schools or of one (1) of such medical school's affiliated teaching hospitals in this state, or any other clinical staff of a healthcare organization;
    3. “Quality improvement committee” or “QIC” means a committee formed or retained by a healthcare organization, an activity of a healthcare organization, or one (1) or more individuals employed by a healthcare organization performing the types of functions listed in subdivisions (c)(3)(A)-(P), the purpose of which, or one (1) of the purposes of which is to evaluate the safety, quality, processes, costs, appropriateness, or necessity of healthcare services by performing functions, including, but not limited to:
      1. Evaluation and improvement of the quality of healthcare services rendered;
      2. Determination that health services rendered were professionally indicated or were performed in compliance with applicable standards of care;
      3. Determination that the cost of health care rendered was considered reasonable;
      4. Evaluation of the qualifications, credentials, competence and performance of healthcare providers or action upon matters relating to the discipline of any individual healthcare provider;
      5. Reduction of morbidity or mortality;
      6. Establishment and enforcement of guidelines designed to keep the cost of health care within reasonable bounds;
      7. Research;
      8. Evaluation of whether facilities are being properly utilized;
      9. Supervision, education, discipline, admission, and the determination of privileges of healthcare providers;
      10. Review of professional qualifications or activities of healthcare providers;
      11. Evaluation of the quantity, quality and timeliness of healthcare services rendered to patients;
      12. Evaluation, review or improvement of methods, procedures or treatments being utilized;
      13. Intervention, support or rehabilitative referrals or services to healthcare providers;
      14. Evaluation as to whether to report an unusual incident pursuant to § 63-6-221 or § 63-9-117 or to evaluate and improve the quality of health care rendered by healthcare providers related to the submission of an unusual incident report;
      15. Activities to determine the healthcare organization's compliance with state or federal regulations; or
      16. Participation in utilization review activities, including participation in review activities within the healthcare organization and activities in conjunction with an insurer or utilization review agent under title 56, chapter 6, part 7; and
    4. “Records” means records of interviews and all reports, incident reports, statements, minutes, memoranda, charts, statistics, evaluations, critiques, test results, corrective actions, disciplinary actions and any and all other documentation generated in connection with the activities of a QIC.
    1. Records of a QIC and testimony or statements by a healthcare organization's officers or directors, trustees, healthcare providers, administrative staff, employees or other committee members or attendees relating to activities of the QIC shall be confidential and privileged and shall be protected from direct or indirect means of discovery, subpoena or admission into evidence in any judicial or administrative proceeding. Any person who supplies information, testifies or makes statements as part of a QIC may not be required to provide information as to the information, testimony or statements provided to or made before such a committee or opinions formed by such person as a result of committee participation.
    2. Any information, documents or records, which are not produced for use by a QIC or which are not produced by persons acting on behalf of a QIC, and are otherwise available from original sources, shall not be construed as immune from discovery or use in any judicial or administrative proceedings merely because such information, documents or records were presented during proceedings of such committee.
    3. A QIC may share information and documents, including complaints, incident reports, and testimony and statements by any person to the QIC, with one (1) or more other QICs as defined under this section or under § 68-11-272. Information and documents disclosed by one (1) QIC to another QIC, and any information and documents created or maintained as a result of the sharing of such information and documents, shall be confidential, privileged and protected from direct or indirect means of discovery, subpoena or admission into evidence, to the same extent as provided in subdivision (d)(1). The QIC sharing such information with another QIC shall determine the manner and process by which it will share such information and documents, which process may include requiring a written agreement between QICs regarding the sharing of practitioner information. The QIC and its sponsoring healthcare organization shall not be held liable and are immune from suit for any disclosure or sharing of information in compliance with this section.
  4. No healthcare organization or its officers, trustees, directors, healthcare providers, administrative staff, employees, other committee members or attendees, or any person providing information to a QIC shall be held liable:
    1. In any action for damages or other relief and is immune from liability arising from the provision of information to a QIC or in any judicial or administrative proceeding if the information is provided to the QIC in good faith and without malice and on the basis of facts reasonably known or reasonably believed to exist; or
    2. In any action for damages or other relief and is immune from liability resulting from any decisions, opinions, actions, and proceedings rendered, entered or acted upon by a QIC undertaken or performed within the scope or function of the duties of such committees or in any judicial or administrative proceeding, if made or taken in good faith and without malice and on the basis of facts reasonably known or reasonably believed to exist.
  5. A professional assistance program also advocates for healthcare professionals before other QICs, healthcare entities, private and governmental insurance carriers, national or local certification and accreditation bodies, and the state health-related boards of this or any other state. The disclosure of confidential, privileged QIC information to such entities during advocacy or as a report to the health-related boards, or to the affected healthcare provider under review, does not constitute either a waiver of confidentiality or privilege.
  6. Any person providing information to a QIC is presumed to have acted in good faith and without malice. Any person alleging lack of good faith has the burden of proving bad faith and malice.
  7. All decisions, opinions, actions and proceedings rendered, entered or acted upon by a QIC are presumed to have been completed in good faith and without malice. Any person alleging lack of good faith has the burden of proving bad faith and malice.

Acts 2011, ch. 67, § 4; 2014, ch. 651, §§ 1-3; 2017, ch. 4, § 1; 2018, ch. 593, § 1.

Compiler's Notes. Acts 2011, ch. 67, § 2 provided that the act, which enacted this section, shall be known and may be cited as the “Tennessee Patient Safety and Quality Improvement Act of 2011.”

Amendments. The 2017 amendment deleted “63-9-114,” following “63-5-131,” in (a).

The 2018 amendment added (c)(1)(L).

Effective Dates. Acts 2017, ch. 4, § 11. March 15, 2017.

Acts 2018, ch. 593, § 3. March 22, 2018.

63-1-151. Report by practitioner to licensing board of indictment for offense involving sale or dispensing of controlled substances.

    1. Notwithstanding any other provision of this chapter or of chapter 3, chapters 5-9 or chapter 19 of this title, when a practitioner licensed under any of such chapters is under state or federal indictment in this state for an offense involving the sale or dispensing of controlled substances under state or federal law, the practitioner shall report the indictment to the practitioner's licensing board in writing within seven (7) calendar days of acquiring actual knowledge of the indictment. Such report shall include the jurisdiction in which the indictment is pending, if known, and shall also be accompanied by a copy of the indictment, if the practitioner has one.
    2. A district attorney general and appropriate attorneys for the federal government are strongly encouraged, when appropriate, to promptly notify a practitioner's licensing board when a practitioner covered under subdivision (a)(1) is indicted in this state for an offense involving the sale or dispensing of controlled substances under state or federal law.
  1. The knowing failure of a practitioner to submit the report required in subdivision (a)(1) to the licensing board shall be considered unprofessional, dishonorable or unethical conduct and may be grounds for such licensing board to take disciplinary action against the practitioner's license. The fact an indictment was sealed and the practitioner could not have actual knowledge of its existence excuses the practitioner from discipline based on the failure of the practitioner to submit a report. However, the claim that the practitioner was not aware of the obligation required in subdivision (a)(1) may not excuse the practitioner from discipline based on the failure of the practitioner to submit a report.
  2. Upon receiving a report of an indictment pursuant to subdivision (a)(1), (a)(2) or from any other source, the practitioner's licensing board, through the board's consultant or other person designated by the board, shall within fifteen (15) calendar days, conduct an expedited review of the practitioner's conduct alleged in the indictment. The purpose of such expedited review shall be to determine if the matter merits an expedited investigation by the board. If so, such a directive shall be given to the department of health's office of investigations. All review activity under this subsection (c) shall be confidential pursuant to § 63-1-117(f).
  3. For the purposes of this section, “controlled substances” means substances regulated as controlled substances under title 39, chapter 17, part 4, or title 53, chapters 10 and 11, or the federal Controlled Substances Act, (21 U.S.C. § 801, et seq.).

Acts 2013, ch. 232, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

63-1-152. Prescription, dispensation, and administration of opioid antagonists — Immunity of certain individuals — Training of first responders.

  1. As used in this section:
    1. “Drug-related overdose” means an acute condition, including mania, hysteria, extreme physical illness, coma, or death resulting from the consumption or use of a controlled substance, or another substance with which a controlled substance was combined, and that a layperson would reasonably believe to be an opioid related drug overdose that requires medical assistance;
    2. “Opioid antagonist” means naloxone hydrochloride which is approved by the federal food and drug administration for the treatment of a drug overdose.
  2. A licensed healthcare practitioner otherwise authorized to prescribe an opioid antagonist acting in good faith and exercising reasonable care may, directly or by standing order, prescribe an opioid antagonist to the following persons:
    1. A person at risk of experiencing an opiate related overdose; or
    2. A family member, friend, or other person in a position to assist a person at risk of experiencing an opiate-related overdose.
  3. In order to establish good faith under subsection (b), a licensed healthcare practitioner, prior to prescribing an opioid antagonist, may require receipt of a written communication that provides a factual basis for a reasonable conclusion that:
    1. The person seeking the opioid antagonist is at risk of experiencing an opiate-related overdose; or
    2. The person seeking the opioid antagonist other than the person who is at risk of experiencing an opiate-related overdose, and who is seeking the opioid antagonist, is a family member, friend, or other person in a position to assist the person at risk of experiencing an opiate-related overdose.
  4. A person who receives an opioid antagonist that was prescribed pursuant to subsection (b) may administer an opioid antagonist to another person if:
    1. The person has a good faith belief that the other person is experiencing an opioid related drug overdose; and
    2. The person exercises reasonable care in administering the drug to the other person.
  5. Evidence of the use of reasonable care in administering the drug shall include the receipt of basic instruction and information on how to administer the opioid antagonist, including successful completion of the online overdose prevention education program offered by the department of health.
  6. The commissioner of health or the commissioner's designee, in consultation with other state, federal or local government personnel, including contractors, shall create and maintain an online education program with the goal of educating laypersons and the general public on the administration of opioid antagonists and appropriate techniques and follow-up procedures for dealing with opioid related drug overdose.
  7. The following individuals are immune from civil liability in the absence of gross negligence or willful misconduct for actions authorized by this section:
    1. Any licensed healthcare practitioner who prescribes or dispenses an opioid antagonist pursuant to subsection (b); and
    2. Any person who administers an opioid antagonist pursuant to subsection (d).
  8. A licensed healthcare practitioner acting in good faith and with reasonable care, who prescribes, dispenses, or administers an opioid antagonist to a person the healthcare provider believes to be experiencing or is at risk of experiencing a drug-related overdose or prescribes an opioid antagonist to a family member, friend, or other person in a position to assist a person experiencing or at risk of experiencing a drug-related overdose is immune from disciplinary or adverse administrative actions under this title for acts or omissions during the administration, prescription, or dispensation of an opioid antagonist.
  9. The commissioner of health or the commissioner's designee shall make available recommendations for training of first responders, as defined in § 29-34-203, in the appropriate use of opioid antagonists. The recommendations shall include a provision concerning the appropriate supply of opioid antagonists to first responders to administer consistent with the requirements of this section.
  10. Any person treated for a drug-related overdose with an opioid antagonist by a first responder shall be taken to a medical facility by emergency medical services for evaluation, unless the person is competent to refuse medical treatment and chooses to refuse treatment.

Acts 2014, ch. 623, § 1; 2015, ch. 396, § 5; 2017, ch. 484, §§ 1, 2.

Code Commission Notes.

Acts 2017, ch. 484, § 1 and § 2  enacted two new subdivisions. However, since the subdivision added by § 1 contained the same language as the subdivision added by § 2, only the subdivision added by § 2 was retained since it had additional language not in conflict with the subdivsion added by § 1.

Compiler's Notes. Acts 2014, ch. 909, § 2 purported to enact § 63-1-152. Section 63-1-152 was previously enacted by Acts 2014, ch. 623, § 1, therefore, the enactment by Acts 2014, ch. 909, § 2 was designated as § 63-1-153 by the authority of the code commission.

Acts 2015, ch. 396, § 1 provided that the act, which added (i), shall be known and may be cited as the “Addiction Treatment Act of 2015”.

Amendments. The 2017 amendment added (j).

Effective Dates. Acts 2017, ch. 484, § 3. July 1, 2017.

Law Reviews.

Defining the Opioid Crisis and the Limited Role of the Criminal Justice System Resolving It, 48 U. Mem. L. Rev. 1206 (Summer 2018).

63-1-153. Signage of medical spas to display name and certification status of supervising medical director or physician.

  1. As used in this section:
    1. “Cosmetic medical service” means any service that uses a biologic or synthetic material, a chemical application, a mechanical device, or a displaced energy form of any kind that alters or damages, or is capable of altering or damaging, living tissue to improve the patient's appearance or achieve an enhanced aesthetic result;
    2. “Media” or “advertising” means oral, written and other types of communication disseminated for the purpose of soliciting medical services. These communications include, but are not limited to, newspaper or magazine advertisement, telephone directory displays, printed brochures or leaflets, websites, email correspondence, and television or radio announcements;
    3. “Medical director” or “supervising physician” means a physician who:
      1. Holds an active medical license under chapter 6 or 9 of this title in this state;
      2. Has an active medical practice in this state; and
      3. Is responsible for the provision of or supervises the provision of cosmetic medical services; and
    4. “Medical spa” means any entity, however named or organized, which offers or performs cosmetic medical services; provided, that a medical spa shall not include an individual physician's office or practice owned by a physician.
  2. Any entity doing business as or advertised as a medical spa shall display the name of the medical director or supervising physician and shall indicate one of the following by signage at its practice site and in its media and advertising:
    1. Whether the medical director or supervising physician is certified or eligible for certification by a private or public board, parent association, multidisciplinary board or association that is a member of the American Board of Medical Specialties (ABMS) or the American Osteopathic Association (AOA);
    2. Whether the medical director or supervising physician is certified by a board or association with equivalent requirements to the ABMS or AOA as approved and recognized by the board of medical examiners or the board of osteopathic examination, as appropriate; or
    3. Whether the medical director or supervising physician is certified by a board or association requiring an Accreditation Council for Graduate Medical Education (ACGME) or AOA approved training program that provides complete training in the specialty or subspecialty certified, followed by prerequisite certification by a certifying board of the ABMS or AOA in that training field and successful completion of an additional examination in the specialty or subspecialty certified.
  3. If the medical director or supervising physician is not certified by any of the entities identified in subsection (b), then the lack of certification shall be displayed by signage at its practice site and in its media and advertising.

Acts 2014, ch. 909, § 2.

Code Commission Notes.

Acts 2014, ch. 909, § 2 purported to enact § 63-1-152. Section 63-1-152 was previously enacted by Acts 2014, ch. 623, § 1, therefore, the enactment by Acts 2014, ch. 909, § 2 was designated as § 63-1-153 by the authority of the code commission.

Compiler's Notes. Acts 2014, ch. 909, § 1 provided that the act, which enacted this section, shall be known and may be referred to as the “Tennessee Patient Safety Cosmetic Medical Procedures Act.”

Attorney General Opinions. An aesthetician licensed by the Board of Cosmetology and Barber Examiners may not perform microblading and/or microneedling in a cosmetology shop or at a medical spa.  A person not licensed by the Board of Cosmetology and Barber Examiners may perform microneedling only if that person satisfies an exemption found in T.C.A. § 62-4-109.  A person not licensed by the Board of Cosmetology and Barber Examiners may perform microblading only if that person satisfies an exemption found in T.C.A. § 62-4-109 and either is a licensed tattoo artist under T.C.A. § 62-38-204 or is exempt from tattooing laws and regulations under T.C.A. § 62-38-210(b).  The marks created by microblading constitute a tattoo.  An individual may perform microblading only if that person satisfies an exemption found in T.C.A. § 62-4-109 and is a licensed tattoo artist under T.C.A. § 62-38-204 or is exempt from tattooing laws and regulations under T.C.A. § 62-38-210(b).  OAG 17-31, 2017 Tenn. AG LEXIS 30 (4/20/2017).

63-1-154. Health care prescriber prohibited from dispensing an opioid or benzodiazepine — Exceptions — Disposition of undispensed inventory.

  1. Except as provided in § 63-1-313, a health care prescriber licensed under this title may not dispense an opioid or benzodiazepine. This section shall not apply to:
    1. The dispensing of complimentary packages of medicinal drugs that are labeled as a drug sample or complimentary drug to the practitioner's own patients in the regular course of practice without the payment of a fee or remuneration of any kind;
    2. The dispensing of opioids or benzodiazepines in the health care system of the department of correction;
    3. The dispensing of opioids or benzodiazepines in connection with the performance of a surgical procedure performed at a licensed health care facility. The amount dispensed pursuant to this subdivision (a)(3) may not exceed a seven-day supply. This exception does not allow for the dispensing of an opioid or benzodiazepine more than seven (7) days after the performance of the surgical procedure;
    4. The dispensing of opioids or benzodiazepines pursuant to an approved clinical trial. For purposes of this subsection (a), the term “approved clinical trial” means a clinical research study or clinical investigation that, in whole or in part, is state or federally funded or is conducted under an investigational new drug application that is reviewed by the United States food and drug administration;
    5. The dispensing of an opioid drug in a nonresidential substitution-based treatment center for opiate addiction, as defined in § 68-11-1602;
    6. The dispensing of an opioid or benzodiazepine to a patient of a facility that is licensed by the board for licensing health care facilities pursuant to § 68-11-202;
    7. The dispensing of an opioid or benzodiazepine to a patient of a facility licensed under title 33;
    8. The dispensing of an opioid or benzodiazepine by a physician practice that provides healthcare services that:
      1. Dispenses opioids and benzodiazepines, as directed by the patient's prescription, in safety-sealed, prepackaged containers stamped with the manufacturer's national drug code (NDC) number;
      2. Administers and records pill-counts for opioids or benzodiazepines in order to ensure patient compliance with the prescription;
      3. Dispenses noncontrolled substances which amount to at least fifty percent (50%) of the prescriptions filled annually from the practice; and
      4. Submits controlled substance dispensing information to the controlled substances monitoring database under title 53, chapter 10, part 3, according to the requirements of state law; or
    9. The dispensing of an opioid or benzodiazepine by a veterinarian in the course of the veterinarian's practice.
  2. Within ten (10) days after January 1, 2015, each medical practitioner licensed under this title, unless the practitioner meets one (1) of the exceptions listed in subsection (a), shall ensure that the undispensed inventory of opioids and benzodiazepines purchased under the prescriber's drug enforcement administration number for dispensing is:
    1. Returned in compliance with this section to a licensed third party reverse distributor; or
    2. Turned in to local law enforcement agencies and abandoned.
  3. Wholesalers shall buy back the undispensed inventory of opioids and benzodiazepines, which are in the manufacturer's original packing, unopened, and in date, in accordance with the established policies of the wholesaler or the contractual terms between the wholesaler and the practitioner concerning returns.

Acts 2014, ch. 983, § 3; 2016, ch. 973, § 1.

Compiler's Notes. Acts 2014, ch. 983, § 5 provided that the commissioner of health is authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Law Reviews.

The Right Hammer for the Right Nail: Public Health Tools in the Struggle Between Pain and Addiction, 48 U. Mem. L. Rev. 1300 (Summer 2018).

63-1-155. Telehealth services — Establishment of provider-patient relationship — Standard of practice — Applicability.

  1. For the purposes of this section:
    1. “Healthcare provider” means:
      1. Any provider licensed under this title who is authorized to diagnose and treat humans; or
      2. Any state-contracted crisis service provider employed by a facility licensed under title 33; and
    2. “Telehealth” or “telemedicine” means, notwithstanding any restriction imposed by § 56-7-1002, the use of real-time audio, video, or other electronic media and telecommunications technologies that enable interaction between the healthcare provider and the patient, or also store-and-forward telemedicine services, as defined by § 56-7-1002(a), for the purpose of diagnosis, consultation, or treatment of a patient in another location where there may be no in-person exchange.
  2. For the purposes of this section, a healthcare provider-patient relationship with respect to telemedicine or telehealth is created by mutual consent and mutual communication, except in an emergency, between the patient and the provider. The consent by the patient may be expressed or implied consent; however, the provider-patient relationship is not created simply by the receipt of patient health information by a provider unless a prior provider-patient relationship exists. The duties and obligations created by the relationship do not arise until the healthcare provider:
    1. Affirmatively undertakes to diagnose and treat the patient; or
    2. Affirmatively participates in the diagnosis and treatment.
      1. A healthcare provider who delivers services through the use of telehealth shall be held to the same standard of professional practice as a similar licensee of the same practice area or specialty that is providing the same healthcare services through in-person encounters, and nothing in this section is intended to create any new standards of care.
      2. Notwithstanding subdivision (c)(1)(A), telehealth services shall be provided in compliance with the guidelines created pursuant to part 4 of this chapter.
    1. The board or licensing entity governing any healthcare provider covered by this section shall not establish a more restrictive standard of professional practice for the practice of telehealth than that specifically authorized by the provider's practice act or other specifically applicable statute, including this chapter or title 53, chapter 10 or 11.
    2. This section shall not apply to pain management clinics, as defined in § 63-1-301, and chronic nonmalignant pain treatment.
  3. Sections 63-6-231 and 63-6-214(b)(21) shall not apply to the practice of telemedicine under this section.
  4. This section shall not apply to or restrict the requirements of § 63-6-241.
  5. Section 63-6-204(a) shall also apply to telemedicine.
    1. Except as provided in subdivision (g)(2), to practice under this section a healthcare provider shall be licensed to practice in this state under this title.
    2. A physician shall be licensed to practice under chapter 6 or 9 of this title in order to practice telemedicine pursuant to § 63-6-209(b), except as otherwise authorized by law or rule.

Acts 2015, ch. 261, § 1.

63-1-156. Immunity from prosecution when seeking medical assistance for drug overdose — Providing first aid or other medical assistance as mitigating factor — Effect on admissibility of evidence.

  1. As used in this section:
    1. “Controlled substance” means a drug, substance, or immediate precursor identified, defined, or listed in title 39, chapter 17, part 4 and title 53, chapter 11;
    2. “Drug overdose” means an acute condition, including, but not limited to, extreme physical illness, decreased level of consciousness, respiratory depression, coma, mania, or death, resulting from the consumption or use of a controlled substance, or other substance inhaled, ingested, injected, or otherwise introduced into the body by the distressed individual that a reasonable person would believe to be resulting from the consumption or use of a controlled substance or other substance by the distressed individual;
    3. “Drug violation” means:
      1. A violation of § 39-17-418; or
      2. A violation of § 39-17-425;
    4. “Medical assistance” means aid provided to a person by a healthcare professional licensed, registered, or certified under the laws of this state who, acting within the person's lawful scope of practice, may provide diagnosis, treatment, or emergency medical services; and
    5. “Seeks medical assistance” means:
      1. Accesses or assists in accessing medical assistance or the 911 system;
      2. Contacts or assists in contacting law enforcement or a poison control center; or
      3. Provides care or contacts or assists in contacting any person or entity to provide care while awaiting the arrival of medical assistance to aid a person who is experiencing or believed to be experiencing a drug overdose.
  2. Any person who in good faith seeks medical assistance for a person experiencing or believed to be experiencing a drug overdose shall not be arrested, charged, or prosecuted for a drug violation if the evidence for the arrest, charge, or prosecution of the drug violation resulted from seeking such medical assistance. Any person who is experiencing a drug overdose and who in good faith seeks medical assistance for or is the subject of a request for medical assistance shall not be arrested, charged, or prosecuted for a drug violation if the evidence for the arrest, charge, or prosecution of the drug violation resulted from seeking such medical assistance. This immunity from being arrested, charged, or prosecuted shall apply to the person experiencing a drug overdose only on the person's first such drug overdose. Any such person shall also not be subject to the following, if related to the seeking of medical assistance:
    1. Penalties for a violation of a permanent or temporary protective order or restraining order; or
    2. Sanctions for a violation of a condition of pretrial release, condition of probation, or condition of parole based on a drug violation.
    1. The act of providing first aid or other medical assistance to someone who is experiencing a drug overdose may be used as a mitigating factor in a criminal prosecution for which immunity, set out in subsection (b), is not provided.
    2. Nothing in this section shall limit the admissibility of any evidence in connection with the investigation or prosecution of a crime with regard to a defendant who does not qualify for the protections of subsection (b) or with regard to other crimes committed by a person who otherwise qualifies for the protections of subsection (b).
    3. Nothing in this section shall limit any seizure of evidence or contraband otherwise permitted by law.
    4. Nothing in this section shall limit or abridge the authority of a law enforcement officer to detain or take into custody a person in the course of an investigation or to effectuate an arrest for any offense except as provided in subsection (b).

Acts 2015, ch. 396, § 2.

Compiler's Notes. Acts 2015, ch. 396, § 1 provided that the act which enacted this section shall be known and may be cited as the “Addiction Treatment Act of 2015”.

Law Reviews.

Defining the Opioid Crisis and the Limited Role of the Criminal Justice System Resolving It, 48 U. Mem. L. Rev. 1206 (Summer 2018).

63-1-157. Statewide collaborative pharmacy practice.

  1. As used in this section:
    1. “Chief medical officer” means the chief medical officer for the department of health;
    2. “Opioid antagonist” means a drug that binds to opioid receptors and blocks or inhibits the effect of opioids acting on those receptors, including, but not limited to, naloxone hydrochloride or any other similarly acting and equally safe drug approved by the United States food and drug administration for the treatment of drug overdose;
    3. “Opioid antagonist training program” means a training program approved by the department of health related to opioid antagonist therapy. The training program shall include, but not be limited to, proper administration techniques, use, documentation, and quality assurance.
    1. The chief medical officer is authorized to implement a statewide collaborative pharmacy practice agreement specific to opioid antagonist therapy with any pharmacist licensed in, and practicing in, this state.
    2. A pharmacist licensed in, and practicing in, this state is authorized to dispense an opioid antagonist, in good faith, pursuant to a valid statewide collaborative pharmacy practice agreement executed by the chief medical officer.
    3. Under a valid statewide collaborative pharmacy practice agreement authorized by the chief medical officer, an authorized pharmacist may dispense an opioid antagonist to:
      1. A person at risk of experiencing an opiate-related overdose;
      2. A family member, friend, or other person in a position to assist a person at risk of experiencing an opiate-related overdose.
    4. Before a pharmacist enters into a statewide collaborative pharmacy practice agreement with the chief medical officer for the dispensing of an opioid antagonist, the pharmacist shall be able to provide documentation of completion of an opioid antagonist training program within the previous two (2) years.
    5. The pharmacist shall maintain the collaborative pharmacy practice agreement in accordance with the requirements set forth in § 63-10-217, and this agreement must be made available to the department of health upon request.
    6. Any licensed pharmacist acting in good faith and with reasonable care, who dispenses an opioid antagonist to a person the pharmacist believes to be experiencing or at risk of experiencing a drug-related overdose, or who dispenses an opioid antagonist to a family member, friend, or other person in a position to assist a person experiencing or at risk of experiencing a drug-related overdose, is immune from disciplinary or adverse administrative actions under this title for acts or omissions during the dispensation of an opioid antagonist.
    7. Any licensed pharmacist who dispenses an opioid antagonist pursuant to subdivision (b)(2) is immune from civil liability in the absence of gross negligence or willful misconduct for actions authorized by this section.
    8. The chief medical officer shall be immune from disciplinary or adverse administrative actions under this title, as well as civil liability in the absence of gross negligence or willful misconduct, for acts or omissions during the dispensing of an opioid antagonist by a pharmacist acting pursuant to a collaborative agreement established pursuant to this section.

Acts 2016, ch. 596, § 1.

Compiler's Notes. For the preamble to the act relative to collaborative pharmacy practice agreements for opioid antagonist therapy, please refer to Acts 2016, ch. 596.

Law Reviews.

Defining the Opioid Crisis and the Limited Role of the Criminal Justice System Resolving It, 48 U. Mem. L. Rev. 1206 (Summer 2018).

63-1-158. Epinephrine-administration protocol — Definitions — Possession of epinephrine kits by law enforcement officers — Liability — Record requirement.

  1. As used in this section:
    1. “Epinephrine kit” means a dose of epinephrine and a device for administering the dose of epinephrine;
    2. “Law enforcement agency” has the same meaning as in § 39-13-519;
    3. “Law enforcement officer” has the same meaning as in § 39-11-106; and
    4. “Pharmacist” has the same meaning as in § 63-10-204.
  2. A law enforcement agency may develop an epinephrine-administration protocol in accordance with this section. The epinephrine-administration protocol shall be developed by a physician licensed under chapter 6 or 9 of this title.
  3. For any law enforcement agency that has developed a epinephrine-administration protocol in accordance with subsection (b), a health care prescriber may prescribe epinephrine kits in the name of the law enforcement agency and a pharmacist may dispense epinephrine kits to the law enforcement agency pursuant to a prescription issued in the name of the law enforcement agency.
  4. In coordination with the appropriate local emergency medical services providers and in accordance with this section, a law enforcement officer may possess an epinephrine kit prescribed to the law enforcement officer's law enforcement agency for the purpose of administering epinephrine in an emergency situation to treat anaphylactic reactions if authorized to do so by the officer's law enforcement agency.
  5. A law enforcement officer may administer epinephrine to treat an anaphylactic reaction if the law enforcement officer is authorized to administer epinephrine by the officer's law enforcement agency, has completed the training required by subsection (f) within the past twelve (12) months, and administers the epinephrine in accordance with a protocol adopted by the officer's law enforcement agency in accordance with subsection (b).
    1. A law enforcement agency shall require that each officer that is authorized to administer epinephrine receive training from qualified medical personnel at least annually. The training shall include:
      1. Patient assessment, including signs and symptoms of anaphylactic shock;
      2. Universal precautions;
      3. Rescue breathing;
      4. Seeking medical attention; and
      5. The use of intramuscular epinephrine as detailed in the protocol described in subsection (b).
    2. A law enforcement agency shall keep a record of each officer's participation in training pursuant to this subsection (f).
    1. A physician shall not be held liable for any injury to an individual who is harmed by the administration of the epinephrine prescribed by the physician pursuant to this section unless the physician acted with reckless disregard for safety.
    2. A law enforcement officer shall not be held liable for any injury to an individual who is harmed by the administration of epinephrine by the law enforcement officer pursuant to this section unless the law enforcement officer acted with reckless disregard for safety.
    3. A law enforcement agency shall not be held liable for any injury to an individual who is harmed by the administration of epinephrine by a law enforcement officer employed by the law enforcement agency pursuant to this section unless the law enforcement agency acted with reckless disregard for safety.
    4. A pharmacist shall not be held liable for any injury to an individual who is harmed by the administration of the epinephrine dispensed by the pharmacist and prescribed by a physician pursuant to this section unless the pharmacist acted with reckless disregard for safety.
  6. A law enforcement officer that administers epinephrine in accordance with this section shall file a record of the event with the appropriate local emergency medical services agency. The record shall include the signs, symptoms, therapies, response, and disposition of the event.

Acts 2016, ch. 801, § 1.

Compiler's Notes. For the preamble to the act concerning administration of epinephrine in emergency circumstances, please refer to Acts 2016, ch. 801.

63-1-159. Prohibited offer or payment, or offer or solicitation, of commission for referral of patient or patronage with respect to alcohol or drug services.

  1. A healthcare provider licensed under this title, with respect to alcohol and drug services, as defined in § 33-2-402, shall not knowingly:
    1. Offer or pay a commission, benefit, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of a patient or patronage to or from a licensee or facility licensed under title 33, chapter 2, part 4;
    2. Solicit or receive a commission, benefit, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring a patient or patronage to or from a licensee or facility licensed under title 33, chapter 2, part 4;
    3. Solicit or receive a commission, benefit, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for the acceptance or acknowledgment of treatment from a licensee or facility licensed under title 33, chapter 2, part 4; or
    4. Aid, abet, advise, or otherwise participate in the conduct prohibited under subdivision (a)(1), (a)(2), or (a)(3).
  2. Any healthcare provider licensed under this title, with respect to alcohol and drug services, that violates this section is subject to suspension or revocation of the healthcare provider's license by the appropriate healthcare licensing board and the imposition of civil penalties as authorized under this title.

Acts 2018, ch. 855, § 2.

Effective Dates. Acts 2018, ch. 855, § 4. July 1, 2018.

63-1-160. Prescription for Schedule ll controlled substance — Electronic prescription for Schedule ll, lll, lV, or V controlled substance — Exceptions.

  1. As used in this section, “electronic prescription” means a written prescription that is generated on an electronic application and is transmitted in accordance with 21 CFR Part 1311.
  2. All written, printed, or electronic prescription orders for a Schedule II controlled substance must contain all information otherwise required by law. The healthcare prescriber must sign the written, printed, or electronic prescription order on the day it is issued. Nothing in this section prevents a healthcare prescriber from issuing a verbal prescription order.
  3. Subject to subsection (d), on or after January 1, 2021, any prescription for a Schedule II, III, IV, or V controlled substance issued by a prescriber who is authorized by law to prescribe the drug must be issued as an electronic prescription from the person issuing the prescription to a pharmacy. The name, address, and telephone number of the collaborating physician of an advanced practice registered nurse or physician assistant must be included on electronic prescriptions issued by an advance practice registered nurse or physician assistant.
  4. Subsection (c) does not apply to prescriptions:
    1. Issued by veterinarians;
    2. Issued in circumstances where electronic prescribing is not available due to technological or electrical failure, as set forth in rule;
    3. Issued by a health care prescriber to be dispensed by a pharmacy located outside the state, as set forth in rule;
    4. Issued when the health care prescriber and dispenser are the same entity;
    5. Issued while including elements that are not supported by the most recently implemented version of the National Council for Prescription Drug Programs Prescriber/Pharmacist Interface SCRIPT Standard;
    6. Issued by a health care prescriber for a drug that the federal food and drug administration (FDA) requires the prescription to contain certain elements that are not able to be accomplished with electronic prescribing;
    7. Issued by a health care prescriber allowing for the dispensing of a non-patient-specific prescription pursuant to a standing order, approved protocol for drug therapy, collaborative pharmacy practice agreement in response to a public health emergency, or in other circumstances where the health care prescriber may issue a non-patient-specific prescription;
    8. Issued by a health care prescriber prescribing a drug under a research protocol;
    9. Issued by a health care prescriber who has received a waiver or a renewed waiver for a specified period determined by the commissioner of health, not to exceed one (1) year without renewal by the commissioner, from the requirement to use electronic prescribing, pursuant to a process established in rule by the commissioner, due to economic hardship, technological limitations that are not reasonably within the control of the health care prescriber, or other exceptional circumstance demonstrated by the health care prescriber;
    10. Issued by a health care prescriber under circumstances where, notwithstanding the health care prescriber's present ability to make an electronic prescription as required by this subsection (a), the health care prescriber reasonably determines that it would be impractical for the patient to obtain substances prescribed by electronic prescription in a timely manner, and such delay would adversely impact the patient's medical condition;
    11. Issued by a health care prescriber who issues fifty (50) or fewer prescriptions for Schedule II controlled substances per year.
  5. A pharmacist who receives a written, oral, or faxed prescription is not required to verify with the health care prescriber that the prescription properly falls under one (1) of the exceptions from the requirement to electronically prescribe in subsection (d). Pharmacists may continue to dispense medications from otherwise valid written, oral, or fax prescriptions that are consistent with § 53-11-308.
  6. The commissioner of health shall refer individual health care prescribers who violate this section to the health care prescriber's licensing board, and for such violation in this section, the health care prescriber is subject to penalties under § 63-1-134.
  7. Any health-related board under § 68-1-101(a)(8) that is affected by this section, shall report to the general assembly by January 1, 2019, on issues related to the implementation of this section.

Acts 2018, ch. 883, § 1; 2019, ch. 124, §§ 3, 4.

Compiler's Notes. Acts 2018, ch. 883, § 10 provided that the commissioner of health is authorized to promulgate rules to effectuate the purposes of the act. All rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in Tennessee Code Annotated, title 4, chapter 5.

Amendments. The 2019 amendment rewrote (b) and (c) which read: “(b)  Subject to subsection (c), any written, printed, or electronic prescription order for a Schedule II controlled substance prepared by a health care prescriber who is authorized by law to prescribe a drug must be legibly printed, entered, or typed as a separate prescription order. The written, printed, or electronic prescription order must contain all information otherwise required by law. The health care prescriber must sign the written, printed, or electronic prescription order on the day it is issued. Nothing in this section shall be construed to prevent a health care prescriber from issuing a verbal prescription order.“(c)  Subject to subsection (d) of this section, on or after January 1, 2020, any prescription for a Schedule II controlled substance shall be issued as an electronic prescription from the person issuing the prescription to a pharmacy. The name, address, and telephone number of the collaborating physician of an advanced practice registered nurse or physician assistant shall be included on the electronic prescription.”

Effective Dates. Acts 2018, ch. 883, § 12. January 1, 2019; provided that for rulemaking purposes, the act took effect May 3, 2018.

Acts 2019, ch. 124, § 16. April 9,  2019.

63-1-161. Waiver of initial licensure fees for low-income persons.

  1. As used in this section:
    1. “Licensing” means the procedure through which the privilege to engage in a specific profession regulated under this title is granted by a licensing authority;
    2. “Licensing authority” means any state agency with the authority to impose training, education, or licensure fees to practice in a profession;
    3. “Licensure fee” means a fee imposed by a licensing authority on persons licensed to practice a profession for the privilege of providing goods or services;
    4. “Low-income persons” means persons who are enrolled in a state or federal public assistance program, including, but not limited to, temporary assistance for needy families (TANF), medicaid, or supplemental nutrition assistance program (SNAP); and
    5. “State agency” means a state board, agency, or commission attached to the division of health related boards, as listed in § 68-1-101(a)(8).
    1. Any licensing authority that requires a license for persons to practice in a profession shall waive all initial licensure fees for low-income persons.
    2. Persons seeking a waiver of initial licensure fee requirements shall apply to the appropriate licensing authority in a format prescribed by the authority.
    3. All licensing authorities to which this section applies shall promulgate rules to effectuate the purposes of this section. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2018, ch. 954, § 2.

Effective Dates. Acts 2018, ch. 954, § 4. January 1, 2019; provided, that for purposes, of promulgating rules, the act took effect May 18, 2018.

63-1-162. Task force to create minimum disciplinary action for healthcare practitioner who deviates from sound medical judgment in treatment of patient with an opioid. [Effective until July 1, 2023.]

  1. If a healthcare practitioner treats a human patient with an opioid and that healthcare practitioner's licensing board or agency finds that the healthcare practitioner engaged in a significant deviation or pattern of deviation from sound medical judgment, the minimum disciplinary action that a healthcare practitioner's licensing board or committee must take shall be established and promulgated by rule by a task force composed of representatives from:
    1. The board of medical examiners;
    2. The board of osteopathic examination;
    3. The board of dentistry;
    4. The board of podiatric medical examiners;
    5. The board of optometry;
    6. The board of nursing; and
    7. The board of medical examiners' committee on physician assistants.
  2. The task force must create a uniform minimum disciplinary action pursuant to this section, which shall be binding on each board and committee listed in subsection (a).
  3. The task force is authorized to establish minimum disciplinary actions pursuant to this section by emergency rule in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The rule promulgated by the task force shall be codified and published by the secretary of state in each of the chapters for the boards and committee listed in subsection (a).
    1. Each board and committee listed in subsection (a) must select and appoint by majority vote one (1) member of their respective board or committee to serve on the task force before September 1, 2018.
    2. The task force shall select and appoint a member to serve as chair of the task force.
    3. A majority of the task force shall constitute a quorum, and a majority vote of the task force members present is required for any action.
    4. Notwithstanding any provision of the Uniform Administrative Procedures Act to the contrary, the task force shall hear public comment at any required hearing on behalf of all boards listed in subsection (a) when a hearing is required. The task force is authorized to vote to promulgate the rule to establish the uniform minimum disciplinary action for each board and committee listed in subsection (a).
  4. In the event that the task force has not promulgated uniform minimum disciplinary actions by April 1, 2019, then the minimum disciplinary action that a healthcare practitioner's licensing board or agency must take is a removal of the healthcare practitioner's right to prescribe controlled substances for no less than five (5) years.
  5. The task force shall terminate upon the later of July 1, 2019, or the effective date of a permanent rule establishing the uniform minimum disciplinary action pursuant to this section. The procedures of this section must be followed to amend, repeal, or otherwise revise the uniform minimum disciplinary action established pursuant to this section. In such case, the task force may be reconvened by the commissioner of health or a majority of the boards and committees listed in subsection (a).
  6. Nothing in this part shall be construed to prohibit the licensing boards and committee listed in subsection (a) from promulgating rules regarding other minimum disciplinary actions that will be taken against their licensees.

Acts 2018, ch. 978, § 13.

Compiler's Notes. Acts 2018, ch. 978, § 14 provided that this section shall terminate on July 1, 2023 and law in effect prior to this act shall be restored.

Effective Dates. Acts 2018, ch. 978, § 15. July 1, 2018; provided, that for rulemaking purposes, the act took effect May 21, 2018.

63-1-163. Partial fill for prescription for controlled substance — Partial fill for opioid.

  1. As used in this section:
    1. “Original prescription” means a prescription for a controlled substance from an authorized prescriber that is presented by the patient to the pharmacist or submitted electronically to the pharmacy; and
    2. “Partial fill” means a prescription filled in a lesser quantity than the amount specified on the prescription for the patient.
    1. A prescription for a controlled substance may be partially filled if:
      1. The partial fill is requested by the patient or the practitioner who wrote the prescription; and
      2. The total quantity dispensed through partial fills pursuant to subdivision (b)(1)(A) does not exceed the total quantity prescribed for the original prescription.
    2. If a partial fill is made, the pharmacist shall retain the original prescription at the pharmacy where the prescription was first presented and the partial fill dispensed.
    3. Any subsequent fill must occur at the pharmacy that initially dispensed the partial fill. Any subsequent fill must be filled within six (6) months from issuance of the original prescription, unless federal law requires it to be filled within a shorter timeframe.
    1. If a partial fill is dispensed, the pharmacist shall only record in the controlled substance database the partial fill amount actually dispensed.
    2. If a partial fill is dispensed, the pharmacist shall notify the prescribing practitioner of the partial fill and of the amount actually dispensed:
      1. Through a notation in the interoperable electronic health record of the patient;
      2. Through submission of information to the controlled substance database;
      3. By electronic or facsimile transmission; or
      4. Through a notation in the patient's record that is maintained by the pharmacy, and that is accessible to the practitioner upon request.
    3. Nothing in this section shall be construed to conflict with or supersede any other requirement established in this part or title 53, chapter 10 or 11, for a prescription of a controlled substance.
    1. [Deleted by 2019 amendment.]
    2. A pharmacist or pharmacy is authorized to charge a dispensing fee to cover the actual supply and labor costs associated with the dispensing of the original prescription of an opioid and each partial fill associated with the original prescription.
    3. Any cost sharing, copayment, dispensing fee, or any portion thereof, made to a pharmacist or pharmacy for the dispensing of a partial fill of an opioid shall not be considered an overpayment.
    4. A health insurance issuer or pharmacy benefits manager shall not utilize partial fills of an opioid to reduce payments to a pharmacist or pharmacy for dispensing multiple partial fills.
    1. [Deleted by 2019 amendment.]
    2. A pharmacist or pharmacy is authorized to charge a dispensing fee to cover the actual supply and labor costs associated with the dispensing of the original prescription of a controlled substance other than an opioid and each partial fill associated with the original prescription.
    3. Any cost sharing, copayment, dispensing fee, or any portion thereof, made to a pharmacist or pharmacy for the dispensing of a partial fill of a controlled substance other than an opioid shall not be considered an overpayment.
    4. A health insurance issuer or pharmacy benefits manager shall not utilize partial fills of a controlled substance other than an opioid to reduce payments to a pharmacist or pharmacy for dispensing multiple partial fills.
  2. By January 1, 2021, all pharmacy dispensing software vendors operating in this state shall update their dispensing software systems to allow for partial filling of controlled substances pursuant to this section.

Acts 2018, ch. 1007, § 1; 2019, ch. 124, §§ 5, 6, 14, 15.

Compiler's Notes. Acts 2018, ch. 1007, § 2 provided that subsection (d) of this section shall take effect January 1, 2019, and, as amended by Acts 2019, ch. 124, § 15, that  subsection (e) of this section shall take effect July 1, 2019.

Amendments. The 2019 amendment, in (b)(3), substituted both occurrences of “must” for “shall”, substituted “six (6) months” for thirty (30) days”, and added “, unless federal law requires it to be filled within a shorter timeframe” at the end; deleted former (d)(1) which read: “A person who presents a prescription for a partial fill for an opioid pursuant to this section is required to pay the prorated portion of cost sharing and copayments.”; deleted former (e)(1) (which never took effect); and added (f). See Compiler’s Notes.

Effective Dates. Acts 2018, ch. 1007, § 2. May 1, 2019; January 1, 2019; July 1, 2019.

Acts 2019, ch. 124, § 16. April 9,  2019.

63-1-164. Restrictions and limitations on treating patient with opioids. [Effective until July 1, 2023.]

  1. As used in this section:
    1. “Alternative treatments” includes, but is not limited to, treatments such as chiropractic care, physical therapy, nonopioid medicinal drugs or drug products, occupational therapy, acupuncture, interventional procedures or treatments, and other such treatments that relieve pain without the use of opioids;
    2. “Encounter” means a single visit where an opioid is administered or an opioid prescription is issued or dispensed;
    3. “Healthcare practitioner” means a person licensed under this title who has the authority to prescribe or dispense controlled substances in the course of professional practice;
    4. “ICD-10 code” means the code established in the International Classification of Diseases, Tenth Revision, Clinical Modification (ICD-10-CM) adopted by the federal centers for medicare and medicaid services, or the code used in any successor classification system adopted by the federal centers for medicare and medicaid services, that corresponds to the diagnosis of the condition being treated;
      1. “Informed consent” means consent voluntarily given in writing by the patient or the patient's legal representative after sufficient explanation and disclosure by the healthcare practitioner of the subject matter involved to enable the person whose consent is sought to make a knowing and willful decision. This explanation and disclosure by the healthcare practitioner to the patient or the patient's legal representative before consent may be obtained must include, at a minimum:
        1. Adequate information to allow the patient or the patient's legal representative to understand:
          1. The risks, effects, and characteristics of opioids, including the risks of physical dependency and addiction, misuse, and diversion;
          2. What to expect when taking an opioid and how opioids should be used; and
          3. Reasonable alternatives to opioids for treating or managing the patient's condition or symptoms and the benefits and risks of the alternative treatments;
        2. A reasonable opportunity for questions by the patient or patient's legal representative;
        3. Discussion and consideration by the patient or the patient's legal representative and the healthcare practitioner of whether the patient should take an opioid medication; and
        4. If the patient is a woman of childbearing age and ability, information regarding neonatal abstinence syndrome and specific information regarding how to access contraceptive services in the community. For purposes of this section, childbearing age is between the ages of fifteen (15) and forty-four (44);
      2. Nothing in subdivision (a)(5)(A) limits other requirements imposed on healthcare practitioners by law or applicable licensing authority;
    5. “Morphine milligram equivalent dose” means the morphine milligram equivalent calculation for the amount of a prescribed opioid, multiplied by the days of treatment;
    6. “Palliative care” means specialized treatment for patients facing serious illness, which focuses on providing relief of suffering through a multidisciplinary approach in order to maximize quality of life for the patient. As used in this subdivision (a)(7), “serious illness” means a health condition that carries a high risk of mortality and negatively impacts a patient's daily bodily functions; and
    7. “Treat” means prescribe, dispense, or administer.
  2. Except as provided in this section, a healthcare practitioner shall not treat a patient with more than a three-day supply of an opioid and shall not treat a patient with an opioid dosage that exceeds a total of one hundred eighty (180) morphine milligram equivalent dose. A healthcare practitioner shall not be required to include an ICD-10 code on any prescription for an opioid of a three-day supply or less and an opioid dosage of less than one hundred eighty (180) morphine milligram equivalent.
    1. A patient shall not be treated with an opioid more frequently than every ten (10) days; provided, however, that if the patient has an adverse reaction to an opioid, a healthcare practitioner may treat a patient with a different opioid within a ten-day period under the following circumstances:
      1. The healthcare practitioner is employed by the same practice that initially treated the patient with the opioid that caused the adverse reaction;
      2. The healthcare practitioner personally evaluates the patient, assesses the patient's adverse reaction, and determines a different course of treatment is more medically appropriate;
      3. The healthcare practitioner confirms with the dispenser that the remainder of the initial prescription has been cancelled by the dispenser;
      4. The healthcare practitioner counsels the patient to appropriately destroy any remaining opioids that were previously dispensed to the patient; and
      5. The healthcare practitioner's treatment of the patient conforms to the requirements of this section.
    2. Notwithstanding subdivision (c)(1), where the treatment provided by a healthcare practitioner is prescribing an opioid, the healthcare practitioner may authorize the prescription to be dispensed by partial fill by placing “partial fill” or “PF” on the prescription.
      1. A healthcare practitioner may treat a patient with more than a three-day supply of an opioid if the healthcare practitioner treats the patient with no more than one (1) prescription for an opioid per encounter and:
        1. Personally conducts a thorough evaluation of the patient;
        2. Documents consideration of non-opioid and non-pharmacologic pain management strategies and why the strategies failed or were not attempted;
        3. Includes the ICD-10 code for the primary disease in the patient's chart, and on the prescription when a prescription is issued; and
        4. Obtains informed consent and documents the reason for treating with an opioid in the chart.
      2. A healthcare practitioner who is dispensing pursuant to a prescription written by another healthcare practitioner for more than a three-day supply of an opioid is not required to satisfy subdivisions (d)(1)(A)(i)-(iv) when filling a prescription that contains an ICD-10 code; provided, that the healthcare practitioner shall not dispense more than one (1) prescription for an opioid to a patient per encounter.
    1. If a healthcare practitioner treats a patient with more than a three-day supply of an opioid, the healthcare practitioner may treat the patient with no more than a ten-day supply and with a dosage that does not exceed a total of a five hundred (500) morphine milligram equivalent dose.
    2. Notwithstanding subdivision (d)(2), in rare cases where the patient has a condition that will be treated by a procedure that is more than minimally invasive and sound medical judgment would determine the risk of adverse effects from the pain exceeds the risk of the development of a substance use disorder or overdose event, a healthcare practitioner may treat a patient with up to a thirty-day supply of an opioid and with a dosage that does not exceed a total of a twelve hundred (1200) morphine milligram equivalent dose.
    3. Notwithstanding subdivision (d)(2), in rare cases after trial and failure of reasonable, appropriate, and available non-opioid treatments for the pain condition or documenting the contraindication, inefficacy, or intolerance of non-opioid treatments, where medical necessity and sound medical judgment would determine the risk of adverse effects from the pain exceeds the risk of the development of a substance use disorder or overdose event, a healthcare practitioner may treat a patient with up to a thirty-day supply of an opioid and with a dosage that does not exceed a total of a one thousand two hundred (1,200) morphine milligram equivalent dose. The healthcare practitioner must include the phrase “medical necessity” on the prescription for any prescription issued pursuant to this subdivision (d)(4).
  3. The restrictions of this section do not apply to the following; provided, that where a prescription is issued pursuant to this subsection (e), the prescription contains the ICD-10 code for the primary disease documented in the patient's chart and the word “exempt”:
    1. The treatment of patients who are undergoing active cancer treatment, undergoing palliative care treatment, or are receiving hospice care;
    2. The treatment of patients with a diagnosis of sickle cell disease;
    3. The administration of opioids directly to a patient during the patient's treatment at any facility licensed under title 68, chapter 11, or any hospital licensed under title 33, chapter 2, part 4;
    4. Prescriptions issued by healthcare practitioners who are:
      1. Pain management specialists, as that term is defined in § 63-1-301, or who are collaborating with a pain management specialist in accordance with § 63-1-306(a)(3); provided, that the patient receiving the prescription is personally assessed by the pain management specialist, or by the advanced practice registered nurse or physician assistant collaborating with the pain management specialist; or
      2. Treating patients in an outpatient setting of a hospital exempt under § 63-1-302(2) that holds itself out to the public as a pain management clinic.
    5. The treatment of patients who have been treated with an opioid daily for ninety (90) days or more during the three hundred sixty-five (365) days prior to April 15, 2018, or those who are subsequently treated for ninety (90) days or more under one (1) of the exceptions listed in subdivision (d)(4) or this subsection (e);
    6. The direct administration of, or dispensing of, methadone for the treatment of an opioid use disorder to a patient who is receiving treatment from a healthcare practitioner practicing under 21 U.S.C. § 823(g)(1);
    7. The treatment of a patient for opioid use disorder with products that are approved by the U.S. food and drug administration for opioid use disorder by a healthcare practitioner under 21 U.S.C. § 823(g)(2);
    8. The treatment of a patient with a product that is an opioid antagonist and does not contain an opioid agonist; or
    9. The treatment of a patient who has suffered a severe burn or major physical trauma and for whom sound medical judgment would determine the risk of adverse effects from the pain exceeds the risk of the development of a substance use disorder or overdose event. As used in this subdivision (e)(9), “severe burn” means an injury sustained from thermal or chemical causes resulting in second degree or third degree burns. As used in this subdivision (e)(9), “major physical trauma” means a serious injury sustained due to blunt or penetrating force which results in serious blood loss, fracture, significant temporary or permanent impairment, or disability.
  4. The commissioner of health, in consultation with the regulatory boards created pursuant to this title that license healthcare practitioners, shall study and analyze the impact and effects of the restrictions and limitations set forth in this section. No later than November 1, 2021, the commissioner shall issue a report relative to the impact and effects of the restrictions and limitations to the governor, the health and welfare committee of the senate, and the health committee of the house of representatives. The report may include recommendations for revisions to the restrictions on the prescription of opioids.
  5. This section applies only to the treatment of human patients.
  6. This section does not apply to opioids approved by the food and drug administration to treat upper respiratory symptoms or cough. However, a healthcare practitioner shall not treat a patient with more than a fourteen-day supply of such an opioid.

Acts 2018, ch. 1039, § 6; 2019, ch. 117, § 1; 2019, ch. 124, §§ 7-13; 2020, ch. 573, § 1.

Compiler's Notes. Acts 2018, ch. 1039, § 9 provided that sections 1 and 6 of the act, which enacted this section and amended § 53-10-303, shall terminate on July 1, 2023, and the law in effect prior to July 1, 2018 shall be restored.

Amendments. The 2019 amendment by ch. 117 added the definition of “alternative treatments” in (a).

The 2019 amendment by ch. 124, effective April 9, 2019, added the definition of “palliative care” in (a); rewrote (c)(2) which read: “(2)  (A)  Notwithstanding subdivision (c)(1), where the treatment provided by a healthcare practitioner is dispensing an opioid, the healthcare practitioner may treat a patient more than once within ten (10) days; provided, that the healthcare practitioner shall not dispense an opioid in an amount that exceeds the greater of:“(i)  A five-day supply per encounter; or“(ii)  Half of the total prescribed amount.“(B)  The healthcare practitioner may dispense the remainder in a subsequent encounter.“(C)  The partial fill requirements of this subdivision (c)(2) shall not be mandatory prior to January 1, 2019, for a dispenser who has not updated the dispenser's software system.”; substituted “thirty-day supply of an opioid and with a dosage that does not exceed a total of a twelve hundred (1200) morphine milligram equivalent dose” for “twenty-day supply of an opioid and with a dosage that does not exceed a total of an eight hundred fifty (850) morphine milligram equivalent dose” at the end of (d)(3); rewrote (e)(1) which read: “The treatment of patients who are undergoing active or palliative cancer treatment or who are receiving hospice care;”; in (e)(9), substituted “for whom sound medical judgment” for “, as those terms are defined by the controlled substance database committee by rule and adopted by the licensing boards created pursuant to title 63, and sound medical judgment” in the first sentence and added the last two sentences; and added (h); and, effective July 1, 2019, added the last sentence in (b).

The 2020 amendment substituted “nonopioid medicinal drugs or drug products, occupational therapy, acupuncture, interventional procedures or treatments, and other such treatments” for “acupuncture, and other such treatments” in the definition of “alternative treatments”.

Effective Dates. Acts 2018, ch. 1039, § 10. July 1, 2018; provided that for rulemaking purposes, the act took effect on May 21, 2018.

Acts 2019, ch. 117, § 2. April 9,  2019.

Acts 2019, ch. 124, § 16. April 9,  2019; July 1, 2019.

Acts 2020, ch. 573, § 2. March 19, 2020.

63-1-165. [Repealed.]

Acts 2018, ch. 1054, § 1; repealed by Acts 2019, ch. 222, § 1, effective April 30, 2019.

Compiler's Notes. Former § 63-1-165 concerned requirements for person practicing ultrasound sonography in nonclinical 3D/4D ultrasound boutique setting.

63-1-166. Acceptance of barter as payment for healthcare services.

  1. Notwithstanding any law to the contrary, a healthcare professional may accept goods or services as payment in a direct exchange of barter for healthcare services provided by the healthcare professional if the patient to whom the healthcare services are provided is not covered by health insurance coverage, as defined by § 56-7-109. A healthcare professional who accepts barter as payment in accordance with this section shall annually submit a copy of the relevant federal tax form disclosing the healthcare professional's income from barter to the healthcare professional's licensing board. This section does not apply to any healthcare services provided at a pain management clinic as defined in § 63-1-301.
  2. For purposes of this section, “healthcare professional” means a physician or other healthcare practitioner licensed, registered, accredited, or certified to perform specified healthcare services pursuant to this title or title 68 and regulated under the authority of the department of health or any agency, board, council, or committee attached to the department.

Acts 2019, ch. 229, § 1.

Effective Dates. Acts 2019, ch. 229, § 3. April 30, 2019.

63-1-167. Exemption from licensing requirements for medical professionals participating in federal lnnovative Readiness Training programs.

  1. Notwithstanding any requirement for the licensure of a medical professional by a health related board listed in § 68-1-101, a medical professional who has a current license to practice from another state, commonwealth, territory, or the District of Columbia is exempt from the licensure requirements of such boards, if:
    1. The medical professional is an active or reserve member of the armed forces of the United States, a member of the national guard, a civilian employee of the United States department of defense, an authorized personal services contractor under 10 U.S.C. § 1091, or a healthcare professional otherwise authorized by the department of defense; and
    2. The medical professional is engaged in the practice of a medical profession listed in § 68-1-101 through a program in partnership with the federal Innovative Readiness Training.
  2. The exemption provided by this section only applies while:
    1. The medical professional's practice is required by the program pursuant to military orders; and
    2. The services provided by the medical professional are within the scope of practice for the individual's respective profession in this state.
  3. This section does not permit a medical professional exempt by this section to engage in the practice of a medical profession listed in § 68-1-101, except as part of federal Innovative Readiness Training as described in this section.
  4. The respective health related board may promulgate rules to effectuate this section. The rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2019, ch. 255, § 1.

Compiler's Notes. The federal Innovative Readiness Training, referred to in this section, is codified at 10 U.S.C. § 2012.

Effective Dates. Acts 2019, ch. 255, § 2. July 1, 2019; provided that for purposes of promulgating rules, the act took effect April 30, 2019.

Part 2
Medical Practitioners Practicing in Free Health Clinics

63-1-201. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Free health clinic” means a health care facility operated by a nonprofit private entity that does not receive payment for its services and does not impose any charges on the individuals to whom services are rendered;
  2. “Medical practitioner” means a:
    1. Physician licensed under chapter 6 or 9 of this title;
    2. Dentist or dental hygienist licensed under chapter 5 of this title;
    3. Nurse licensed under chapter 7 of this title;
    4. Chiropractor licensed under chapter 4 of this title;
    5. Psychologist licensed under chapter 11 of this title;
    6. Social worker licensed under chapter 23 of this title; and
    7. Physician assistant licensed under chapter 19 of this title; and
  3. “Special volunteer license” means a license awarded to a medical practitioner whose sole practice is rendering professional services without remuneration in a free health clinic at a specified site or setting. The practitioner must have been previously issued a license to practice in this state or another state and the practitioner must never have been the subject of disciplinary action. The licensing authority shall require an application and relevant documentation before issuing the special volunteer license. No fee may be charged for an application or issuance of the special license.

Acts 2004, ch. 579, § 1.

63-1-202. Exemption from fees and taxes.

Medical practitioners who practice in a free health clinic and who do not receive monetary remuneration for medical care and other services rendered within the statutory scope of practice for such practitioner shall not be subject to:

  1. Any fees for a special volunteer license from the practitioner's licensing board; or
  2. The privilege tax on occupations imposed by title 67, chapter 4, part 17.

Acts 2004, ch. 579, § 1.

63-1-203. Compensation for services prohibited — Donations and gifts permitted.

A medical practitioner or a free health clinic may not receive any compensation for services rendered including, but not limited to, reimbursement from an individual or from any third party payor. Reimbursement may not be accepted from any insurance policy, health plan or federal or state benefits program. A clinic may receive donations and gifts.

Acts 2004, ch. 579, § 1.

Part 3
Pain Management Clinics

63-1-301. Part definitions.

For purposes of this part, unless the context requires otherwise:

  1. “Advanced practice registered nurse” means any person licensed under chapter 7 of this title, who meets the requirements of § 63-7-126;
  2. “Chronic nonmalignant pain treatment” means prescribing or dispensing opioids, benzodiazepines, barbiturates or carisoprodol for ninety (90) days or more in a twelve-month period for pain unrelated to cancer or palliative care;
  3. “Department” means the department of health;
  4. “Medical director” means an individual who:
    1. Is licensed as a physician under chapter 6 or 9 of this title, and who practices in this state with an unrestricted, unencumbered license;
    2. Provides oversight relative to the operations of a pain management clinic; and
    3. Is a pain management specialist on or after July 1, 2016;
  5. “Medical doctor” means any person licensed under chapter 6 of this title;
  6. “Osteopathic physician” means any person licensed under chapter 9 of this title;
    1. “‘Pain management clinic’ or ‘clinic’” means a privately-owned clinic, facility or office in which any health care provider licensed under this title provides chronic nonmalignant pain treatment to a majority of its patients for ninety (90) days or more in a twelve-month period. For purposes of determining if a clinic, facility, or office qualifies as a pain management clinic under this subdivision (8)(A), the entire clinic, facility, or office caseload of patients who received medical care services from all medical doctors, osteopathic physicians, advanced practice registered nurses and physician assistants who serve in the clinic, facility or office shall be counted;
    2. “Pain management clinic” also means a privately-owned clinic, facility or office which advertises in any medium for pain management services of any type.
    3. A pain management clinic does not include any clinic, facility, or office which provides interventional pain management as defined in § 63-6-244 and whose clinic, facility or office does not provide chronic nonmalignant pain treatment to a majority of the patients of a clinic, facility or office for ninety (90) days or more in a twelve-month period;
    4. “Pain management clinic” does not mean a clinic, facility, or office that is wholly owned and operated by a physician multispecialty practice in which one (1) or more board-eligible or board-certified medical specialists who have also completed fellowships in pain medicine or pain management approved by the Accreditation Council for Graduate Medical Education, or who are also board-certified in pain medicine or pain management by the American Board of Pain Medicine or a board approved by the American Board of Medical Specialties, the American Association of Physician Specialists, or the American Osteopathic Association to perform the pain management services for chronic pain patients;
  7. “Pain management specialist” means a physician licensed under chapter 6 or 9 of this title who:
      1. Has a subspecialty certification in pain medicine or pain management as accredited by the Accreditation Council for Graduate Medical Education (ACGME) through either the American Board of Medical Specialties (ABMS) or the American Osteopathic Association (AOA), or is eligible to sit for the board examination offered by ABMS or AOA;
      2. Holds an unencumbered Tennessee license; and
      3. Maintains the minimum number of continuing medical education (CME) hours in pain medicine or pain management to satisfy retention of ABMS or AOA certification. Any exceptions to this requirement shall be approved by the respective regulatory board;
      1. Attains American Board of Pain Medicine (ABPM) diplomate status;
      2. Holds an unencumbered Tennessee license; and
      3. Maintains the minimum number of CME hours in pain management to satisfy retention of ABPM diplomate status. Any exceptions to this requirement shall be approved by the respective regulatory board;
    1. Is board certified by the American Board of Interventional Pain Physicians (ABIPP) by passing exam 1 on or before June 30, 2016, and holds an unencumbered Tennessee license and maintains the minimum number of CME hours in pain management to satisfy retention of ABIPP diplomate status; provided, that on and after July 1, 2016, a new applicant shall only qualify as a pain management specialist under this subdivision (9)(C) if the applicant is board certified by ABIPP by passing parts 1 and 2 of its examination, and holds an unencumbered Tennessee license and maintains the minimum number of CME hours in pain management to satisfy retention of ABIPP diplomate status; or
    2. Has an active pain management practice in a clinic accredited in outpatient interdisciplinary pain rehabilitation by the commission on accreditation of rehabilitation facilities or any successor organization and holds an unencumbered Tennessee license.
  8. “Physician assistant” means any person licensed under chapter 19 of this title.

Acts 2011, ch. 340, § 1; 2012, ch. 869, § 1; 2013, ch. 336, § 2; 2013, ch. 430, § 7; 2014, ch. 700, § 1; 2015, ch. 475, §§ 1-3; 2016, ch. 829, § 1; 2016, ch. 980, §§ 5-7; 2016, ch. 1033, §§ 6, 7; 2017, ch. 210,  §§ 1-3.

Compiler's Notes. Acts 2013, ch. 336, § 2, effective from July 1, 2013, until October 1, 2013, amended the definition of “pain management clinic” to read: “(5) ‘Pain management clinic’ means a privately-owned facility in which a majority of the facility's patients, seen by any or all of its medical doctors, osteopathic physicians, advanced practice nurses with certificates of fitness to prescribe, or physician assistants, are provided pain management services by being prescribed opioids, benzodiazepines, barbiturates, or carisoprodol, but not suboxone, for more than ninety (90) days in a twelve-month period; and”.

Acts 2013, ch. 430, § 1 provided that the act, which amended the definition of “pain management clinic”, shall be known and may be cited as the “Addison Sharp Prescription Regulatory Act of 2013.”

Acts 2013, ch. 430, § 11 provided that the department of health, the board of pharmacy or any board operating under title 63, is authorized to use emergency rules under § 4-5-208(a)(5), in order to promulgate any rules required by the act.

Amendments. The 2016 amendment by ch. 1033, effective July 1, 2017, deleted the former definition of “certificate holder”, which read: “‘Certificate holder’ means a medical doctor licensed under chapter 6 of this title; an osteopathic physician licensed under chapter 9 of this title; an advanced practice nurse licensed under chapter 7 of this title, who meets the requirements contained in § 63-7-126; or a physician assistant licensed under chapter 19 of this title, who practices in this state with an unrestricted, unencumbered license. Anyone with an ownership interest in a pain management clinic shall be eligible to be the certificate holder;”; and substituted the defined term “‘pain management clinic’ or ‘clinic’” for “pain management clinic”.

The 2017 amendment, in (D) of the definition of “pain management clinic”, substituted “one (1) or more” for “one or more” near the beginning, inserted “or pain management” twice, and substituted “to perform the” for “perform the” near the end; and, in the definition of “pain management specialist”, inserted “or pain management” in (A)(i), and inserted “pain medicine or” in (A)(iii).

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.Acts 2017, ch. 210, § 4.  July 1, 2017.

Law Reviews.

Defining the Opioid Crisis and the Limited Role of the Criminal Justice System Resolving It, 48 U. Mem. L. Rev. 1206 (Summer 2018).

63-1-302. Exemptions from part.

This part does not apply to:

  1. A medical or dental school, an osteopathic medical school, a nursing school, a physician assistant program or an outpatient clinic associated with any of the foregoing schools or programs, including, but not limited to, clinics that have an agreement to train residents by members of that clinic who are appointed as adjunct faculty of the school or program;
  2. A hospital as defined in § 68-11-201, including any outpatient facility or clinic of a hospital if such outpatient facility or clinic is regulated under title 68;
  3. Hospice services as defined in § 68-11-201;
  4. A nursing home as defined in § 68-11-201;
  5. A facility maintained or operated by this state; or
  6. A hospital or clinic maintained or operated by the federal government.

Acts 2011, ch. 340, § 1; 2012, ch. 869, §§ 2, 3.

63-1-303. Regulation of licensed healthcare practitioners — Rules and regulations.

    1. Each licensed healthcare practitioner who provides services at a pain management clinic shall continue to be regulated only by the board which has issued a license to that practitioner.
    2. A licensed health care practitioner shall notify the board that has licensed the practitioner within ten (10) days of starting or ending work at any pain management clinic.
  1. On or before October 1, 2011, the commissioner of health, in consultation with the board of medical examiners, the board of osteopathic examination, the board of nursing, and the committee on physician assistants, shall promulgate rules necessary to implement this part, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. The rules adopted pursuant to subsection (b) shall address the following topics, among others:
    1. The operation of the clinic, including requirements:
      1. That patients have current and valid government issued identification or current health insurance card issued by either a government or private carrier; and
      2. That providers conduct urine drug screening in accordance with a written drug screening compliance plan as required by rules promulgated by the commissioner of health pursuant to subsection (b);
    2. Personnel requirements for the clinic;
    3. Training requirements for clinic providers who are regulated by that board;
    4. Patient records;
    5. Standards to ensure quality of patient care;
    6. Infection control;
    7. Health and safety requirements;
    8. License application and renewal procedures and requirements;
    9. Data collection and reporting requirements;
    10. Inspections and complaint investigations; and
    11. Patient billing procedures.

Acts 2011, ch. 340, § 1; 2013, ch. 430, § 8; 2014, ch. 700, § 2; 2014, ch. 983, § 1; 2016, ch. 1033, § 8.

Compiler's Notes. Acts 2013, ch. 430, § 1 provided that the act, which amended subsection (c), shall be known and may be cited as the “Addison Sharp Prescription Regulatory Act of 2013.”

Acts 2013, ch. 430, § 11 provided that the department of health, the board of pharmacy or any board operating under title 63, is authorized to use emergency rules under § 4-5-208(a)(5), in order to promulgate any rules required by the act.

Acts 2014, ch. 983, § 5 provided that the commissioner of health is authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2016 amendment by ch. 1033, effective July 1, 2017, deleted the former definition of “certificate holder”, which read: “‘Certificate holder’ means a medical doctor licensed under chapter 6 of this title; an osteopathic physician licensed under chapter 9 of this title; an advanced practice nurse licensed under chapter 7 of this title, who meets the requirements contained in § 63-7-126; or a physician assistant licensed under chapter 19 of this title, who practices in this state with an unrestricted, unencumbered license. Anyone with an ownership interest in a pain management clinic shall be eligible to be the certificate holder;”; and substituted the defined term “‘pain management clinic’ or ‘clinic’” for “pain management clinic”.

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

Law Reviews.

Defining the Opioid Crisis and the Limited Role of the Criminal Justice System Resolving It, 48 U. Mem. L. Rev. 1206 (Summer 2018).

63-1-304. Inspections.

Each board shall have the authority to inspect a pain management clinic which utilizes the services of a practitioner licensed by that board. During such inspections, the authorized representatives of the board may inspect all necessary documents and medical records to ensure compliance with this part and all other applicable laws and rules.

Acts 2011, ch. 340, § 1.

63-1-305. Investigation of complaints.

Each board shall have the authority to investigate a complaint alleging a violation of this part, or a rule adopted under this part, by a pain management clinic utilizing the services of a healthcare practitioner licensed by that board. Each board shall also have the authority to investigate a complaint alleging that a pain management clinic utilizing the services of a healthcare practitioner licensed by that board is not properly licensed by the department as required by this part.

Acts 2011, ch. 340, § 1; 2016, ch. 1033, § 9.

Amendments.  The 2016 amendment, effective July 1, 2017, substituted “pain management clinic utilizing the services of a healthcare practitioner licensed by that board is not properly licensed” for “facility utilizing the services of a healthcare practitioner licensed by that board is not properly certified” in the second sentence.

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

63-1-306. Medical director — Operation certificate — Disciplinary action.

    1. Each pain management clinic must have a medical director who is a medical doctor or osteopathic physician who practices in this state under an unrestricted and unencumbered license issued pursuant to § 63-6-201 or § 63-9-104.
    2. In addition to the requirements of subdivision (a)(1), each physician serving as a medical director at a pain management clinic shall be a pain management specialist.
      1. All advanced practice registered nurses licensed under chapter 7 of this title, who practice in a licensed pain clinic, shall collaborate with a pain medicine specialist.
      2. All physician assistants licensed under chapter 19 of this title who practice in a licensed pain clinic shall collaborate with a pain medicine specialist.
  1. In the event that the medical director, for whatever reason, no longer meets the requirements of this part, the pain management clinic must notify the department, in writing within ten (10) business days, of the identity of another physician who meets the requirements of this part and will act as medical director and provide all necessary documentation required by the department to establish that the replacement is qualified as required by this part. Any clinic that fails to provide such timely written notice must cease operations until the notice is provided and the department has confirmed in writing that the replacement medical director is duly qualified. Continuation of operations without the timely written notice required by this subsection (b) constitutes grounds for disciplinary action against the clinic under this part.
  2. Any board that assesses any discipline or penalty against a provider that it licenses for a violation of rules promulgated under this part shall inform the department of any penalty or discipline imposed on such a provider for a violation of rules promulgated under this part within thirty (30) days of imposing the discipline or penalty, and the department may consider such discipline or penalty as a basis for disciplinary action against the pain management clinic pursuant to this subsection (c).
  3. The pain management clinic shall post the license in a conspicuous location so as to be clearly visible to patients.
  4. The department shall have the authority to adopt rules, including emergency rules if deemed necessary, to implement this part for which the department has responsibility.

Acts 2011, ch. 340, § 1; 2012, ch. 869, § 4; 2015, ch. 475, §§ 4, 5; 2016, ch. 1033, § 10; 2017, ch. 334, § 1; 2018, ch. 610, § 1.

Compiler's Notes. For the Preamble to the act relative to the relationship between physicians and advanced practice registered nurses, please refer to Acts 2017, ch. 334.

Amendments. The 2016 amendment rewrote the section, which read: “(a)(1)  A pain management clinic, as defined in this part, must have a medical director who is a physician that practices in this state under an unrestricted and unencumbered license issued pursuant to § 63-6-201 or § 63-9-104. “(2)  In addition to the requirements of subdivision (a)(1), each physician serving as a medical director at a pain management clinic shall be a pain management specialist as defined in this part. “(3)  All advanced practice nurses licensed under chapter 7 of this title and physician assistants licensed under chapter 19 of this title, who practice in a certified pain clinic, shall be supervised by a pain medicine specialist as defined in this part.“(b)  In the event that the medical director, for whatever reason, no longer meets the requirements of this part, the pain management clinic must notify the department, within ten (10) business days, of the identity of another physician who meets the requirements of this part and will act as medical director. A change of majority ownership of a certified pain management clinic requires the submission of a new application for a certificate. Failure to notify the department within ten (10) business days may be the basis for a summary suspension of the clinic's certification.“(c)  (1)  Every pain management clinic shall submit an application to the department on a form prescribed by the department for a certificate to operate the clinic. A certificate may be awarded to a certificate holder. The certificate holder shall be one (1) of the owners of the clinic. “(2)  A completed form for a certificate prescribed by the department shall show proof that the clinic has a medical director who is a pain management specialist as defined in this part.“(d)  Each clinic location shall be certified separately regardless of whether the clinic is operated under the same business name, ownership or management as another clinic.“(e)  The department shall issue a certificate if the department finds that the pain management clinic meets the requirements of this part and that the fee required by the department has been paid.“(f)  (1)  If the department finds that a pain management clinic which was issued a certificate no longer meets any requirement of this part, including, but not limited to, any violation of any rule promulgated by the department pursuant to this part, the department may impose lawful disciplinary action against the pain management clinic, including, but not limited to, the revocation or suspension of its certificate, and the imposition of a civil penalty of up to one thousand dollars ($1,000) per day for each day of continued violation. The pain management clinic shall be entitled to a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Further, the department has the discretion to lift the suspension of a certificate when the clinic demonstrates compliance to the department. “(2)  Any board which assesses any discipline or penalty against a provider that it licenses for a violation of rules promulgated under this part shall inform the department of any penalty or discipline imposed on such a provider for a violation of rules promulgated under this part within thirty (30) days of imposing the discipline or penalty, and the department may consider such discipline or penalty as a basis for disciplinary action against the pain management clinic pursuant to this subsection (f).“(g)  The clinic shall post the certificate in a conspicuous location so as to be clearly visible to patients.“(h)  The department is authorized to charge a fee for the issuance of a certificate.“(i)  The department and each board identified in § 63-1-303(b) shall post on its web site an announcement of the requirement that a pain management clinic obtain a certificate from the department, and each board identified in § 63-1-303(b) shall include information about such requirement in a routine communication sent by each board to its licensees.“(j)  A pain management clinic operating on or before January 1, 2012, may continue to operate as long as an application for certification is timely filed on or before October 1, 2012. This provision shall apply retroactively to applications for certification filed since January 1, 2012.“(k)  The department shall have the authority to adopt rules, including emergency rules if deemed necessary, to implement this part for which the department has responsibility.”The 2017 amendment divided former (a)(3) into present (a)(3)(A) and (B), in present (a)(3)(A), by substituting “under chapter 7 of this title, who practice in a licensed pain clinic, shall collaborate with a pain medicine specialist. (B) All physician assistants” for “under chapter 7 of this title and physician assistants”;  and in present (a)(3)(B), substituted “licensed pain clinic” for “licensed pain management clinic” and substituted “pain medicine specialist” for “pain management specialist.”

The 2018 amendment substituted “shall collaborate with a pain medicine specialist” for “shall be supervised by a pain medicine specialist” at the end of (a)(3)(B).

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

Acts 2017, ch. 334, § 15. July 1, 2017.

Acts 2018, ch. 610, § 42. July 1, 2018.

Law Reviews.

Defining the Opioid Crisis and the Limited Role of the Criminal Justice System Resolving It, 48 U. Mem. L. Rev. 1206 (Summer 2018).

63-1-307. [Repealed.]

Acts 2011, ch. 340, § 1; repealed by Acts 2016, ch. 1033, § 11, effective July 1, 2017.

Compiler's Notes. Former § 63-1-307, concerned the expiration of a pain management clinic certificate.

63-1-308. [Repealed.]

Acts 2011, ch. 340, § 1; repealed by Acts 2016, ch. 1033, § 12, effective July 1, 2017.

Compiler's Notes. Former § 63-1-308, concerned the renewal of a pain management clinic certificate.

63-1-309. Restrictions on ownership — Documentation of controlled substances dispensed or prescribed — Required medical director hours.

  1. A pain management clinic may not be owned wholly or partly by a person who has been convicted of, pled nolo contendere to, or received deferred adjudication for:
    1. An offense that constitutes a felony; or
    2. An offense that constitutes a misdemeanor, the facts of which relate to the distribution of illegal prescription drugs or a controlled substance or controlled substance analogue as defined in § 39-17-402.
  2. If any practitioner providing services at a pain management clinic prescribes controlled substances for the treatment of chronic nonmalignant pain, the practitioner must document in the patient's record the reason for prescribing that quantity.
  3. A medical director shall be onsite at least twenty percent (20%) of the clinic’s weekly total number of operating hours. A medical director shall serve as medical director and provide services for no more than four (4) pain management clinics.

Acts 2011, ch. 340, § 1; 2012, ch. 848, § 65; 2012, ch. 869, § 5; 2012, ch. 880, § 24; 2013, ch. 336, §§ 3, 4; 2013, ch. 430, § 9; 2016, ch. 1002, § 13; 2016, ch. 1033, § 13.

Compiler's Notes. Acts 2012, ch. 880, § 1 provided that the act, which amended subsection (c), shall be known and may be cited as the “Tennessee Prescription Safety Act of 2012.”

Acts 2012, ch. 880, § 25, provided that this section shall be interpreted to be consistent with all state and federal laws addressing privacy of patient records.

Acts 2013, ch. 430, § 1 provided that the act, which amended subsection (d), shall be known and may be cited as the “Addison Sharp Prescription Regulatory Act of 2013.”

Acts 2013, ch. 430, § 11 provided that the department of health, the board of pharmacy or any board operating under title 63, is authorized to use emergency rules under § 4-5-208(a)(5), in order to promulgate any rules required by the act.

Acts 2016, ch. 1002, § 13, deleted the provisions of Acts 2012, ch. 880, § 29 that provided for the expiration of the amendments by Acts 2012, ch. 880,  § 24.  Therefore, those amendments remain in effect.

63-1-310. Payments.

  1. A pain management clinic may accept only a check or credit card in payment for services provided at the clinic, except as provided in subsection (b).
  2. A payment may be made in cash for a co-pay, coinsurance or deductible when the remainder of the charge for the services will be submitted to the patient's insurance plan for reimbursement.

Acts 2011, ch. 340, § 1; 2013, ch. 430, § 10.

Compiler's Notes. Acts 2013, ch. 430, § 1 provided that the act, which amended subsection (a), shall be known and may be cited as the “Addison Sharp Prescription Regulatory Act of 2013.”

Acts 2013, ch. 430, § 11 provided that the department of health, the board of pharmacy or any board operating under title 63, is authorized to use emergency rules under § 4-5-208(a)(5), in order to promulgate any rules required by the act.

NOTES TO DECISIONS

1. Violation.

Clinic continued to accept money orders and a sign posted in the office confirmed that the clinic would accept only money orders for self-pay for office visits; this practice conflicted with the statute to only allow cash payments in limited circumstances, and as appellants admitted to several billing violations and at least one improper practice continued when charges were filed, substantial and material evidence existed for the finding of a failure to maintain adequate billing records. Ballard v. Tenn. Dep't of Health, — S.W.3d —, 2020 Tenn. App. LEXIS 207 (Tenn. Ct. App. May 8, 2020).

63-1-311. Violations — Penalties.

  1. A violation of this part, or a rule adopted under this part, is grounds for disciplinary action against a practitioner providing services at a pain management clinic licensed under this part by the board that licensed that practitioner.
  2. A practitioner who provides pain management services at an unlicensed pain management clinic is subject to disciplinary action against the practitioner's license, up to and including revocation, as well as an administrative penalty of no less than one thousand dollars ($1,000) per day of unlicensed operation and not exceeding five thousand dollars ($5,000) per day of unlicensed operation, imposed by the board that licensed that practitioner, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Before such a penalty may be assessed by the board, the board shall give at least thirty (30) days' notice to the practitioner of the alleged violation of this part.
  3. Any owner of an unlicensed pain management clinic is subject to disciplinary action against the practitioner's license, up to and including revocation, as well as an administrative penalty of no less than one thousand dollars ($1,000) per day of unlicensed operation and not exceeding five thousand dollars ($5,000) per day of unlicensed operation, imposed by the department of health, in accordance with the Uniform Administrative Procedures Act. Any owner may also be charged the costs of any inspection or investigation pursuant to this part, as well as the costs of prosecution and other costs permitted under § 63-1-144 and that formed the basis of disciplinary action provided for in this part. Before such a penalty may be assessed by the department, the department shall give at least thirty (30) days' notice to the owners of the alleged violation of this part.

Acts 2011, ch. 340, § 1; 2013, ch. 430, §§ 12, 13; 2016, ch. 1033, § 14.

Compiler's Notes. Acts 2013, ch. 430, § 1 provided that the act, which amended subsection (b) and added subsection (c), shall be known and may be cited as the “Addison Sharp Prescription Regulatory Act of 2013.”

Acts 2013, ch. 430, § 11 provided that the department of health, the board of pharmacy or any board operating under title 63, is authorized to use emergency rules under § 4-5-208(a)(5), in order to promulgate any rules required by the act.

Amendments. The 2016 amendment, effective July 1, 2017, rewrote the section, which read: “(a)  A violation of this part, or a rule adopted under this part, is grounds for disciplinary action against a practitioner providing services at a pain management clinic certified under this part by the board which licensed that practitioner.”“(b)  A practitioner who provides pain management services at an uncertified pain management clinic is subject to an administrative penalty of no less than one thousand dollars ($1,000) per day and which shall not exceed five thousand dollars ($5,000) per day, imposed by the board which licensed that practitioner, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Before such a penalty may be assessed by the board, the board shall give at least thirty (30) days' notice to the practitioner of the alleged violation of this part.“(c)  An owner, co-owner, or operator of an uncertified pain management clinic is subject to an administrative penalty of no less than one thousand dollars ($1,000) per day and which shall not exceed five thousand dollars ($5,000) per day, imposed by the department of health, in accordance with the Uniform Administrative Procedures Act. Before such a penalty may be assessed by the department, the department shall give at least thirty (30) days' notice to the owner, co-owner, or operator of the alleged violation of this part.”

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

Law Reviews.

Defining the Opioid Crisis and the Limited Role of the Criminal Justice System Resolving It, 48 U. Mem. L. Rev. 1206 (Summer 2018).

63-1-312. [Repealed.]

Acts 2012, ch. 869, § 6; repealed by Acts 2016, ch. 1033, § 15, effective July 1, 2017.

Compiler's Notes. Former § 63-1-312, concerned the involuntary inactivation of a pain management clinic certificate.

63-1-313. Dispensing of controlled substances by pain management clinics or medical personnel working at pain management clinics.

  1. Notwithstanding any provision of this title or title 53, chapters 10 and 11 to the contrary, no pain management clinic or medical doctor, osteopathic physician, advanced practice registered nurse with certificates of fitness to prescribe, or physician assistant working at a pain management clinic shall be permitted to dispense controlled substances; provided, however, that this subsection (a) shall not prohibit a medical doctor, osteopathic physician, advanced practice registered nurse with certificates of fitness to prescribe, or physician assistant working at a pain management clinic from providing to that practitioner's patient, without charge, a sample of a schedule IV or schedule V controlled substance in a quantity limited to an amount that is adequate to treat the patient for a maximum of seventy-two (72) hours or a sample of a non-narcotic schedule V controlled substance in a quantity limited to an amount that is adequate to treat the patient for a maximum of fourteen (14) days.
  2. For the purposes of this section, “controlled substance” has the meaning given in § 39-17-402.

Acts 2013, ch. 336, § 1; 2014, ch. 842, § 1; 2016, ch. 980, § 8.

Code Commission Notes.

Acts 2013, ch. 430, § 14 purported to enact § 63-1-313. Section 63-1-313 was previously enacted by Acts 2013, ch. 336, § 1; therefore, the enactment by Acts 2013, ch. 430, § 14 was designated as § 63-1-314 by the authority of the code commission.

Compiler's Notes. Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 842 took effect on April 28, 2014.

Cross-References. Criteria for schedule IV drugs, § 39-17-411.

Criteria for schedule V drugs, § 39-17-413.

NOTES TO DECISIONS

1. Violation.

Doctor admitted to repackaging controlled substances from some patients and giving them to others, and while he attempted to minimize his violations of T.C.A. § 63-1-313(a), substantial and material evidence was presented to establish the finding that controlled substances were distributed by him in violation of statutes applicable to pain clinics. Ballard v. Tenn. Dep't of Health, — S.W.3d —, 2020 Tenn. App. LEXIS 207 (Tenn. Ct. App. May 8, 2020).

63-1-314. Reporting on prescription drug abuse and pain management clinics

The commissioner of health and each appropriate occupational professional licensing board governing licensees who may legally prescribe or dispense controlled substances shall prepare a comprehensive report on actions relative to prescription drug abuse and pain management clinics to the general assembly no later than January 31 for actions in the prior calendar year. This report shall summarize the number of complaints received, frequent findings, and actions taken.

Acts 2013, ch. 430, § 14.

Code Commission Notes.

Acts 2013, ch. 430, § 14 purported to enact § 63-1-313. Section 63-1-313 was previously enacted by Acts 2013, ch. 336, § 1; therefore, the enactment by Acts 2013, ch. 430, § 14 was designated as § 63-1-314 by the authority of the code commission.

Compiler's Notes. Acts 2013, ch. 430, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Addison Sharp Prescription Regulatory Act of 2013.”

Acts 2013, ch. 430, § 11 provided that the department of health, the board of pharmacy or any board operating under title 63, is authorized to use emergency rules under § 4-5-208(a)(5), in order to promulgate any rules required by the act.

63-1-315. Inspection of office suspected of operating as unlicensed pain management clinic — Prohibited admission of new patients.

  1. Notwithstanding this title or title 68, for the purposes of determining if a health care provider's office is operating as a pain management clinic, the department of health is authorized to conduct an unannounced inspection process, which may include, but not be limited to, review of business and medical records, when the department has reasonable suspicion that the office is operating as an unlicensed pain management clinic. As part of this inspection process, the health care provider's office shall be required to produce evidence that the majority of its patient population is not receiving chronic nonmalignant pain treatment.
  2. If the health care provider's office is unable during the inspection process to provide satisfactory evidence that the office does not meet the definition of a pain management clinic, there shall be a rebuttable presumption that the provider's office was operating as a pain management clinic in any administrative proceeding arising from such inspection process.
  3. The requirements for evidence under this section shall be established by rule.
  4. Any health care provider's office rebuttably presumed to be operating an unlicensed pain management clinic shall be prohibited from admitting any new patients to the practice immediately upon receipt of written notice to any provider at the clinic and all owners and providers at such clinic shall be subject to a hearing upon thirty (30) days' notice before the licensee's licensing board to consider whether the individual's license to practice should be revoked or otherwise disciplined. Pursuant to this part, the commissioner may promulgate rules providing for an informal advisory administrative hearing by a panel appointed by the commissioner to review the department's determination regarding the unlicensed operation of the clinic and to provide nonbinding recommendations to the commissioner concerning those determinations. The informal administrative hearing shall not be subject to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Individuals appointed to any panel pursuant to this part shall be considered “state employees” for purposes of title 8, chapter 42, and § 9-8-307.

Acts 2016, ch. 1033, § 1.

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

63-1-316. Pain management clinic license.

  1. On or after July 1, 2017, no person shall own or operate a pain management clinic unless the medical director obtains a license from the department. No license shall be issued unless the pain management clinic has been inspected and found to be in compliance with this part by the department. The department is authorized to charge a reasonable fee for any application for a license.
    1. Every medical director of a pain management clinic in this state shall receive from the department a pain management clinic license. Notwithstanding any provision of this title to the contrary, the department shall establish a system of license renewals at intervals that will allow for the distribution of the license workload as uniformly as is practicable throughout the calendar year. Licenses issued under this section are valid for twenty-four (24) months and expire on the last day of the last month of the license period. However, during a transition period, or at any time thereafter when the department determines that the volume of work for any given interval is unduly burdensome or costly, either the licenses or renewals, or both of them, may be issued for terms of not less than six (6) months nor more than eighteen (18) months. The fee imposed for any license under this section for a period of other than twenty-four (24) months shall be proportional to the annual fee and modified in no other manner, except that the proportional fee shall be rounded off to the nearest quarter of a dollar (25¢).
    2. In order to transition regulation of pain management clinics to a system of licensure, the department is authorized to require the licensure of a clinic with a certificate holder under this part on the date of the expiration of the certificate. The pain management clinic may continue to operate until the certificate expires, and the certificate shall be deemed to be a license under this part until it expires. On the expiration of the certificate, the clinic may seek an initial licensure under this section.
  2. The department shall inspect each pain management clinic a minimum of once every two (2) years to ensure compliance with this part. The department shall not refuse license renewal based solely upon failure of the department to inspect a pain management clinic as required by this subsection (c).
  3. Any medical director, in order to lawfully establish, conduct, operate, or maintain a pain management clinic shall obtain a license from the department in the following manner:
    1. The medical director shall submit an application on a form to be prepared by the department, showing that the medical director is of good moral character and able to comply with the minimum standards for a pain management clinic and with rules lawfully promulgated under this part. The medical director shall also submit any required fees. The application shall contain the following additional information:
      1. The name or names of all owners;
      2. The location of the pain management clinic;
      3. The name of the medical director, and the identification of any other license or application related to a pain management clinic with which the medical director is associated;
      4. The names and Tennessee license numbers for any employees of the clinics or other persons with whom the clinic has contracted for services;
      5. Whether any owner, employee, or person with whom the clinic contracts has been convicted of any felony; is under indictment for any offense involving the sale, diversion, or dispensing of controlled substances under state or federal law; or has had any license issued by any jurisdiction, under which the person may prescribe, dispense, administer, supply, or sell a controlled substance, restricted, disciplined, or denied; and
      6. Other information as the department may reasonably require;
    2. If the commissioner determines that a license for any pain management clinic will not be granted in accordance with this section, the commissioner shall notify the applicant; and
    3. If the commissioner finds that the applicant complies with this part and the rules promulgated under this part, then the commissioner may recommend and approve the issuance of a license, and a license may be issued by the department licensing the applicant to operate the pain management clinic.
    1. The commissioner shall promulgate by rule additional licensure requirements that define appropriate health and safety standards necessary to protect the health and welfare of residents.
    2. The commissioner shall promulgate by rule additional financial requirements, such as bonds or liability insurance, to be required of pain management clinics.
  4. Each license to operate a pain management clinic shall expire as provided in subsection (b) and shall become invalid on that date unless renewed. A licensee may renew its license within sixty (60) days following the license expiration date upon payment of the renewal fee in addition to a late penalty established by the commissioner for each month or fraction of a month that payment for renewal is late. A late penalty shall not exceed twice the renewal fee. If a licensee fails to renew its license within sixty (60) days following the license expiration date, the licensee shall reapply for licensure in accordance with the rules established by the commissioner and shall cease operation of the clinic until such time as the clinic is duly licensed. A license shall not be assignable or transferable, shall be issued only for the location named in the application, shall be posted in a conspicuous place in the pain management clinic, and may be renewed as provided in this part.
    1. The commissioner may deny, suspend, revoke, or otherwise discipline or restrict the license issued under this part on any of the following grounds:
      1. A violation of this part or of the rules promulgated pursuant to this part;
      2. The permitting, aiding, or abetting the commission of any illegal act in the pain management clinic;
      3. A license issued in error;
      4. Any conduct or practice found by the commissioner to be detrimental to the welfare of the patients in the pain management clinic;
      5. A conviction of any employee of the clinic for an offense involving the sale, diversion, or dispensing of controlled substances under state or federal law related to the operation of the clinic;
      6. Any owner has been convicted of, pled nolo contendere to, or received deferred adjudication for an offense that constitutes a felony;
      7. Any owner or employee or person who otherwise provides services in the clinic or contracts with the clinic has ever been denied, by any jurisdiction, a license under which the person may prescribe, dispense, administer, supply, or sell a controlled substance;
      8. Any owner or employee or person who otherwise provides services in the clinic or contracts with the clinic has ever held a license issued by any jurisdiction, under which the person may prescribe, dispense, administer, supply, or sell a controlled substance, that has been restricted; and
      9. Any owner or employee or person who otherwise provides services in the clinic or contracts with the clinic has ever been subject to disciplinary action by any licensing entity for conduct that was the result of inappropriately prescribing, dispensing, administering, supplying, or selling a controlled substance.
    2. The commissioner may, after a hearing, hold the case under advisement and make a recommendation as to requirements to be met by the pain management clinic in order to avoid suspension, revocation, or other discipline of a license or suspension of admissions.
    3. The commissioner may promulgate rules defining the sanction structure and associated penalties.
    4. The hearing to deny a license, suspend a license, revoke a license, place a pain management clinic on probation, or impose any other sanction, and judicial review of the commissioner's decision, shall be in accordance with the Uniform Administrative Procedures Act (UAPA), compiled in title 4, chapter 5, and shall include the right to appeal and judicial review under the UAPA.
  5. On or after July 1, 2017, no owner of a pain management clinic shall locate or participate in locating a pharmacy, as defined in § 63-10-204, in which any owner has an ownership interest, in a location that is adjacent to the location of the clinic. Locating a pharmacy in which any owner of a pain management clinic has an ownership interest adjacent to the clinic shall result in the revocation of the license to operate the pain management clinic.
  6. The commissioner is authorized to promulgate, in accordance with the Uniform Administrative Procedures Act rules as are necessary to set fees for licensure, renewal of licensure, late renewal fees, and other fees.
  7. Any licensee or applicant for a license aggrieved by a decision or action of the department or commissioner pursuant to this part may request a hearing before the commissioner.

Acts 2016, ch. 1033, § 2.

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

63-1-317. Unlawful operation of pain management clinic — Investigation — Injunctive relief — Civil penalty.

  1. An entity or person who operates a pain management clinic without obtaining a license pursuant to this part commits a Class A misdemeanor. Each day of operation without a license constitutes a separate offense.
  2. The commissioner of health may authorize an investigation of any person or entity to the extent necessary to determine if the person or entity is engaged in the unlawful operation of a pain management clinic.
  3. The commissioner may, through the office of the attorney general and reporter, apply for injunctive relief in any court of competent jurisdiction to enjoin any person from committing an act in violation of this part. Injunctive proceedings are in addition to, and not in lieu of, all penalties and other remedies prescribed in this part.
  4. A person who aids or requires another person to violate this part or rules promulgated pursuant to this part, who permits a license issued by the commissioner to be used by any person other than the licensee, or who acts to violate or evade this part or rules promulgated pursuant to this part is subject to a civil penalty of not more than five thousand dollars ($5,000) for each violation. Each day in violation of this part constitutes a separate violation.

Acts 2016, ch. 1033, § 3.

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

63-1-318. Suspension of treatment — Transition plan — Notice — Corrective action plan — Special monitor.

    1. In those cases where the conditions of any pain management clinic are, or are likely to be, detrimental to the health, safety, or welfare of any patient, the commissioner of health has the authority to suspend treatment of any new or existing patients to the clinic pending a prompt hearing before an administrative judge.
    2. In the event a suspension under this section affects existing patients, the pain management clinic shall provide written notice and other appropriate notice to patients. The pain management clinic shall develop a transition plan to maintain continuity of care for the patients and to minimize the impact of transition to alternative care arrangements. The plan shall be developed in conjunction with the department. The pain management clinic shall assist each patient in locating an alternative placement or treatment resource, which shall be specified in the transition plan. The transition plan shall also include the most recent version of the patient's plan of care. The commissioner may promulgate rules specifying additional components of the transition plan in accordance with this part.
  1. The commissioner is authorized to withdraw the suspension of treatment at any time prior to a hearing, based on information presented to the commissioner showing that such conditions have been and will continue to remain corrected.
  2. Whenever the commissioner suspends the treatment of any new patients, the commissioner shall detail, in a notice to the clinic, the specific violations causing the suspension. The notice shall be prominently posted at the clinic so as to be readily available to the public.
  3. The notice shall detail what conditions are considered detrimental to the health, safety, or welfare of the patients.
  4. Within ten (10) days of receiving the notice described in subsection (d), a pain management clinic shall submit a corrective action plan to the commissioner delineating the measures to be taken to address violations and associated time frames. If it is deemed by the commissioner to be necessary to ensure the health, safety, and welfare of clinic patients, the commissioner may require the clinic to take all necessary actions to correct violations immediately.
  5. If the clinic complies with the conditions described in subsection (e), the commissioner may lift the suspension, unless other conditions exist that warrant an additional suspension or continuation of the suspension. The commissioner has the authority to:
    1. Continue or modify the suspension of treatment;
    2. Withdraw the suspension of treatment;
    3. Suspend or condition the license of the clinic; and
    4. Enter other orders as the commissioner deems necessary.
  6. During a suspension of treatment pursuant to this section, the commissioner may appoint one (1) or more special monitors, if the deficiency threatens serious harm to the patients of the clinic. The commissioner may appoint a special monitor or monitors at any other time, if the commissioner has reason to believe that deficiencies exist in a clinic that are detrimental to the direct care of the patients. Whenever the appointment of monitors is utilized pursuant to this section, the commissioner shall appoint a sufficient number of monitors to ensure their presence in the clinic for a minimum of twenty (20) hours per week. The monitors shall observe the operation of the clinic and shall submit written reports periodically to the commissioner on the operation of the clinic. Persons appointed as monitors shall be duly qualified to discharge their responsibilities. While employed as monitors, they shall represent the department with the power to observe and review all of the clinic's operation, with attention to those aspects for which the suspension of admission was imposed. When appointment of a monitor or monitors is mandated by this section, the clinic shall be liable for the costs of the special monitors, until it has been determined that the deficiencies have been corrected. The commissioner may retain a monitor in a clinic after acceptance of a correction plan and issuance of compliance to evaluate the clinic's continued compliance, but such continued monitoring shall be at the expense of the department. The costs of the monitors for which a clinic is responsible shall be recoverable as follows:
    1. Addition of such costs to the clinic's licensing fee, the renewal of the clinic's license to be contingent upon the prior payment of the costs; or
    2. By suit of the department in the circuit or chancery court of competent jurisdiction to recover the costs.
  7. Judicial review shall be available pursuant to § 4-5-322.

Acts 2016, ch. 1033, § 4.

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

63-1-319. Annual report by medical director of pain management clinic.

  1. The medical director of each pain management clinic shall report annually to the department of health, on a form promulgated by the department, the following:
    1. The number of physicians, physician assistants, and advanced practice registered nurses who are working in the clinic for each month;
    2. The number of patients seen by the clinic for each month and the number receiving treatment for chronic nonmalignant pain;
    3. Whether the pain management clinic is part of or associated with a hospital; and
    4. Any other information requested by the department.
  2. The department is authorized to promulgate a reporting form concerning such information as the commissioner may reasonably require, and establish the reporting period and dates for submission.

Acts 2016, ch. 1033, § 5.

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

63-1-320. Providing rules to health committee and health and welfare committee.

Notwithstanding this part or the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, any rule promulgated to implement this part shall be provided to the chairs of the health committee of the house of representatives and the health and welfare committee of the senate by the secretary of state, after approval by the attorney general and reporter, at the same time the text of the rule is made available to the government operations committees of the senate and the house of representatives for purposes of conducting the review required by § 4-5-226 in order for the health committee of the house of representatives and the health and welfare committee of the senate to be afforded the opportunity to comment on the rule.

Acts 2016, ch. 1033, § 17.

Effective Dates. Acts 2016, ch. 1033, § 18. July 1, 2017; provided that for the purposes of rulemaking, the act took effect on April 28, 2016.

Part 4
Treatment Guidelines

63-1-401. Part definitions — Development of recommended treatment guidelines for prescribing opioids — Development of pain clinic guidelines — Study of co-prescription of naloxone with opioid — Review of guidelines — Notification of licensees.

  1. As used in this part:
    1. “Commissioner” means the commissioner of health;
    2. “Pain clinic guidelines” means systematically developed standards to assist healthcare providers and pain clinic certificate holders in making decisions concerning the appropriate medical care for chronic nonmalignant pain treatment, as defined in § 63-1-301; and
    3. “Treatment guidelines” means systematically developed statements to assist healthcare providers in making patient decisions concerning appropriate medical care for specific clinical circumstances and settings.
  2. By January 1, 2016, the commissioner shall develop recommended treatment guidelines for prescribing opioids that can be used by prescribers in this state as a guide for caring for patients. This subsection (b) shall not apply to veterinarians.
  3. By January 1, 2017, the commissioner shall develop recommended pain clinic standards for the operation of a pain management clinic, as defined in § 63-1-301, that can be used by certified pain clinics in this state as a guide for operating a pain clinic. This subsection (c) shall not apply to veterinarians.
  4. By January 1, 2020, the commissioner shall:
    1. Study instances when co-prescribing of naloxone with an opioid is beneficial and publish the results to each prescribing board that licenses healthcare professionals who can legally prescribe controlled substances and to the board of pharmacy; and
    2. Include the findings in the treatment guidelines for prescribing opioids developed pursuant to subsection (b).
  5. The commissioner shall review treatment guidelines and the pain clinic guidelines by September 30 of each year and shall cause these guidelines to be posted on the department's website.
  6. The treatment guidelines shall be submitted to each prescribing board that licenses health professionals who can legally prescribe controlled substances and to the board of pharmacy. Each board shall be charged with reviewing the treatment guidelines and determining how the treatment guidelines should be used by that board's licensees.
  7. The pain clinic guidelines shall be submitted to each board that licenses individuals eligible to hold a pain clinic certificate for review and concurrence.
  8. Each board shall notify all of its licensees through routine bulletins or newsletters of the existence of the guidelines and standards.

Acts 2013, ch. 430, § 2; 2015, ch. 475, § 6; 2019, ch. 327, § 1.

Compiler's Notes. Acts 2013, ch. 430, § 1 provided that the act, which enacted this part, shall be known and may be cited as the “Addison Sharp Prescription Regulatory Act of 2013.”

Acts 2013, ch. 430, § 11 provided that the department of health, the board of pharmacy or any board operating under title 63, is authorized to use emergency rules under § 4-5-208(a)(5), in order to promulgate any rules required by the act.

Amendments. The 2019 amendment added (d) and redesignated former (d) through (g) as present (e) through (h), respectively.

Effective Dates. Acts 2019, ch. 327, § 2. May 8, 2019.

Law Reviews.

The Right Hammer for the Right Nail: Public Health Tools in the Struggle Between Pain and Addiction, 48 U. Mem. L. Rev. 1300 (Summer 2018).

Defining the Opioid Crisis and the Limited Role of the Criminal Justice System Resolving It, 48 U. Mem. L. Rev. 1206 (Summer 2018).

63-1-402. Prescribers required to hold a current federal DEA license and to complete continuing education — Exceptions to application of part.

  1. On or after July 1, 2014, all prescribers who hold a current federal drug enforcement administration (DEA) license and who prescribe controlled substances shall be required to complete a minimum of two (2) hours of continuing education related to controlled substance prescribing biennially to count toward the licensees' mandatory continuing education.
  2. The continuing education must include instruction in the department's treatment guidelines on opioids, benzodiazepines, barbiturates, and carisoprodol, and may include such other topics as medicine addiction, risk management tools, and other topics as approved by the respective licensing boards.
  3. This section shall not apply to veterinarians, providers practicing at a registered pain management clinic as defined in § 63-1-301 or to medical doctors or osteopathic physicians board certified by the American Board of Medical Specialties (ABMS), or American Osteopathic Association (AOA), or the American Board of Physician Specialties (ABPS) in one (1) or more of the following specialties or subspecialties:
    1. Pain management;
    2. Anesthesiology;
    3. Physical medicine and rehabilitation;
    4. Neurology; or
    5. Rheumatology.

Acts 2013, ch. 430, § 2.

Compiler's Notes. Acts 2013, ch. 430, § 1 provided that the act, which enacted this part, shall be known and may be cited as the “Addison Sharp Prescription Regulatory Act of 2013.”

Acts 2013, ch. 430, § 11 provided that the department of health, the board of pharmacy or any board operating under title 63, is authorized to use emergency rules under § 4-5-208(a)(5), in order to promulgate any rules required by the act.

Law Reviews.

The Right Hammer for the Right Nail: Public Health Tools in the Struggle Between Pain and Addiction, 48 U. Mem. L. Rev. 1300 (Summer 2018).

Defining the Opioid Crisis and the Limited Role of the Criminal Justice System Resolving It, 48 U. Mem. L. Rev. 1206 (Summer 2018).

63-1-403. Nonresidential buprenorphine treatment guidelines.

  1. As used in this section:
    1. “Commissioners” means the commissioner of mental health and substance abuse services and the commissioner of health; and
    2. “Nonresidential buprenorphine treatment guidelines” means systematically developed standards to assist any practitioners authorized by the state to prescribe buprenorphine-containing products for the treatment of opioid use disorder as defined in the latest version of the Diagnostic and Statistical Manual of Mental Disorders.
    1. By January 1, 2018, the commissioner of mental health and substance abuse services, in collaboration with the commissioner of health, shall develop recommended nonresidential treatment guidelines for the use of buprenorphine that can be used by prescribers in this state as a guide for caring for patients. This subsection (b) shall only apply to practitioners prescribing buprenorphine-containing products for the treatment of opioid use disorder in a nonresidential setting. The guidelines must be consistent with applicable state and federal laws.
    2. Guidelines from nationally recognized organizations, such as the American Society of Addiction Medicine, Substance Abuse and Mental Health Services Administration, and the American Board of Preventative Medicine, must serve as resources in the development of guidelines under this section.
    3. The commissioner of mental health and substance abuse services shall consult with appropriate physicians, alcohol and substance abuse counselors, and other experts to serve as resources in the development of guidelines under this section.
  2. By July 1, 2019, the commissioner of mental health and substance abuse services, in collaboration with the commissioner of health, shall revise the nonresidential buprenorphine treatment guidelines to be consistent with state and federal law and establish protocols for initiating periodic prescriber-initiated-and-led discussions with patients regarding patient readiness to taper down or taper off opioids employed in treatment. The commissioner of mental health and substance abuse services shall consult with appropriate physicians, alcohol and substance abuse counselors, and other experts to serve as resources in the development of guidelines under this subsection (c).
  3. Beginning in 2019, the commissioners shall review the nonresidential buprenorphine treatment guidelines by September 30 of each year and shall cause these guidelines to be posted on both the department of mental health and substance abuse services and the department of health's websites.
    1. The commissioner of mental health and substance abuse services shall submit the nonresidential buprenorphine treatment guidelines to each health-related board that licenses any practitioner authorized by the state to prescribe buprenorphine-containing products for the treatment of an opioid use disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders and to the board of pharmacy.
    2. Each board shall review the nonresidential buprenorphine treatment guidelines and determine how the nonresidential buprenorphine treatment guidelines should be used by that board's licensees.
    3. Each board shall post the nonresidential buprenorphine guidelines and standards on the licensing board's website.
  4. The commissioner of mental health and substance abuse services shall provide a copy of any guidelines developed pursuant to this section and any revision to those guidelines developed pursuant to this section to the chairs of the health committee of the house of representatives and the health and welfare committee of the senate at the time the guidelines or the revisions are posted on websites of the department of mental health and substance abuse services and the department of health.

Acts 2017, ch. 112, § 1; 2018, ch. 978, § 5.

Amendments. The 2018 amendment added present (c) and redesignated former (c)-(e) as present (d)-(f), respectively.

Effective Dates. Acts 2017, ch. 112, § 2. April 7, 2017.

Acts 2018, ch. 978, § 15. July 1, 2018; provided, that for purposes of rulemaking, the act took effect May 21, 2018.

Part 5
Health Care Empowerment Act

63-1-501. Short title.

This part shall be known and may be cited as the “Health Care Empowerment Act.”

Acts 2016, ch. 996, § 1; 2020, ch. 739, §  1.

Amendments. The 2020 amendment purported to amend this section, but no changes were made.

Effective Dates. Acts 2020, ch. 739, § 3. July 1, 2020.

63-1-502. Part definitions.

As used in this part:

  1. “Direct medical care agreement” means a written contractual agreement between a direct medical care provider and an individual patient, or the patient's legal representative, in which:
    1. The direct medical care provider agrees to provide medical care services to the individual patient for an agreed fee over an agreed period of time;
    2. The direct medical care provider will not bill third parties on a fee-for-service basis;
    3. Any per-visit charges under the agreement will be less than the monthly equivalent of the periodic fee;
    4. The agreement describes the scope of the medical care service that is covered by the periodic fee;
    5. The agreement contains the following disclosures, or substantially similar disclosures, that are conspicuously visible in the agreement in bold font:
      1. The agreement does not constitute health insurance under the laws of this state;
      2. An uninsured patient that enters into a direct medical care agreement may be subject to tax penalties under the Patient Protection and Affordable Care Act, Public Law 111-148, for failing to obtain insurance;
      3. Patients insured by health insurance plans that are compliant with the Patient Protection and Affordable Care Act already have coverage for certain preventative care benefits at no cost to the patient;
      4. Payments made by a patient for services rendered under a direct medical care agreement may not count towards the patient's health insurance deductibles and maximum out-of-pocket expenses;
      5. A patient is encouraged to consult with the patient's health insurance plan before entering into the agreement and receiving care; and
      6. A direct medical care provider who breaches the agreement may be liable for damages and subject to discipline by the appropriate licensing board;
    6. The agreement specifies the duration of the agreement, including automatic renewal periods; and
    7. The patient is not required to pay more than twelve (12) months of the fee in advance. However, the contracted fee may be paid on a payment schedule agreed to by the direct medical care provider and patient that may be due on a monthly, quarterly, or yearly basis;
  2. “Direct medical care provider”:
    1. Means an individual or legal entity that is licensed, registered, or otherwise authorized to provide medical care services in this state under this title, and who chooses to enter into a direct medical care agreement; and
    2. Includes an individual medical care provider or other legal entity, alone or with others professionally associated with the provider or other legal entity;
  3. “Medical care service” includes the screening, assessment, diagnosis, and treatment for the purpose of promotion of health or the detection and management of disease or injury within the competency and training of the direct medical care provider; and
  4. “Medical products” include medical drugs and pharmaceuticals.

Acts 2016, ch. 996, § 1; 2017, ch. 163, §§ 1-7; 2020, ch. 739, §  1.

Compiler's Notes. Acts 2017, ch. 163, § 8 provided that nothing in the act, which amended this section, authorizes a chiropractic physician to use a title other than  the titles recognized in § 63-1-109(a)(1).

Amendments. The 2017 amendment, in the definition of “direct primary care agreement”, substituted “between a direct primary care physician” for “between a primary care physician” in the introductory language; substituted “direct primary care physician” for “physician” in (A), (E)(vi) and (G); substituted “discipline by the appropriate licensing board;” for “professional discipline by the board of medical examiners;” in (E)(vi); substituted “‘Primary care physician’ or ‘physician’” for “‘Physician’” and “chapters 4, 6, or 9” for “chapter 6 or 9” in the definition of “physician”; and added “ or, if applicable, within the scope of practice of a chiropractic physician” after “within the competency and training of the direct primary care physician” at the end of the definition of “primary care service.”

The 2020 amendment substituted “medical” for “primary” and “provider” for “physician” throughout the section;  substituted “the medical care service” for “primary service” in (1)(D); substituted “may be subject” for “may still be subject” in (1)(E)(ii); deleted “may be” preceding “subject to” in (1)(E)(vi); in (1)(G), substituted “. However, the” for “; provided, that the” and inserted “the” preceding “direct”; substituted the present definition of “Direct medical care provider” for the former definition of “Direct primary care physician” which read: “Direct primary care physician” means an individual or legal entity that is licensed, registered, or otherwise authorized to provide primary care services in this state under this title, and who chooses to enter into a direct primary care agreement. A direct primary care physician includes an individual primary care physician or other legal entity, alone or with others professionally associated with the physician or other legal entity”; redesignated the definition of “Medical products”; deleted the former definitions of “Primary care physician” or “physician” which read: “‘Primary care physician’ or ‘physician’ means a physician licensed under chapters 4, 6, or 9 of this title; and”; deleted the former definition of “Primary care service” which read: “‘Primary care service’ includes the screening, assessment, diagnosis, and treatment for the purpose of promotion of health or the detection and management of disease or injury within the competency and training of the direct primary care physician or, if applicable, within the scope of practice of a chiropractic physician.”; and added the definition of “Medical care service”.

Effective Dates. Acts 2017, ch. 163, § 9. April 24, 2017.

Acts 2020, ch. 739, § 3. July 1, 2020.

63-1-503. Purchase and payment of medical services or products outside of insurance plan or outside of TennCare or medicare program not prohibited.

    1. Nothing in state law prohibits a patient or a legal representative of a patient from seeking care outside of an insurance plan, or outside of the TennCare or Medicare program, and paying for that care.
    2. Nothing in state law prohibits a medical care provider licensed under this title, or a healthcare facility, licensed under title 33 or 68, from accepting payment for services or medical products outside of an insurance plan.
    3. Nothing in state law prohibits a medical care provider licensed under this title, or a healthcare facility, licensed under title 33 or 68, from accepting payment for services or medical products provided to a TennCare or Medicare beneficiary.
  1. A patient or legal representative does not forfeit insurance benefits, TennCare benefits, or Medicare benefits by purchasing medical services or medical products outside the system.
  2. The offer and provision of medical services or medical products purchased and provided under this part is not an offer of insurance and is not regulated by the insurance laws of this state.

Acts 2016, ch. 996, § 1; 2020, ch. 739, §  1.

Amendments. The 2020 amendment substituted “prohibits” for “shall be construed as prohibiting” in (a)(1); redesignated the former first sentence of (b) as (a)(2) and rewrote the sentence, which read: “Nothing in the law of this state shall be construed as prohibiting a physician, other medical professional licensed under this title, or a healthcare facility, licensed under title 33 or 68, from accepting payment for services or medical products outside of an insurance plan.”; redesignated the former second sentence of (b) as (a)(3) and rewrote the sentence, which read: “Nothing in the law of this state shall prohibit a physician, other medical professional, or a medical facility from accepting payment for services or medical products provided to a TennCare or medicare beneficiary.”; redesignated former (c) as present (b) and former (d) as present (c); substituted “does” for “shall” in present (b); and in present (c), substituted “is not an offer” for “shall not be deemed an offer”,  “is not regulated” for “nor regulated” and “this state” for “the state”.

Effective Dates. Acts 2020, ch. 739, § 3. July 1, 2020.

63-1-504. Direct medical care agreement.

  1. A direct medical care agreement is not insurance and is not subject to regulation by the department of commerce and insurance.
  2. Entering into a direct medical care agreement is not the business of insurance and is not subject to regulation under title 56.
  3. A direct medical care provider, or the agent of a direct medical care provider, is not required to obtain a certification of authority or license under the Tennessee Insurance Producer Licensing Act of 2002, compiled in title 56, chapter 6, to market, sell, or offer to sell a direct medical care agreement.
  4. A direct medical care agreement is not a discount medical plan.
  5. A direct medical care agreement must:
    1. Allow either party to terminate the agreement upon written notice to the other party;
    2. Provide that fees are not earned by the direct medical care provider until the month paid by the periodic fee has been completed; and
    3. Provide that, upon termination of this agreement by the individual patient, all unearned fees are to be returned to the patient.

Acts 2016, ch. 996, § 1; 2020, ch. 739, §  1.

Amendments. The 2020 amendment substituted “medical” for “primary” in the section heading and throughout the section; substituted “provider” for “physician” in (c) twice, and in (e)(2); and substituted “must” for “shall” in the introductory paragraph of (e).

Effective Dates. Acts 2020, ch. 739, § 3. July 1, 2020.

Part 6
Opiod Abuse or Diversion

63-1-601. Reporting suspected opiod abuse or diversion.

  1. The department of health shall accept allegations of opioid abuse or diversion. The department shall publicize a means of reporting allegations of opioid abuse or diversion.
  2. Any entity that prescribes, dispenses, or handles opioids shall provide information to employees about reporting suspected opioid abuse or diversion. The information may be provided to each employee individually in writing, documented by the employing entity, or by posting, in a conspicuous location in a non-public area regularly used by employees, a sign at least eleven inches (11") in height and seventeen inches (17") in width stating:

    NOTICE: PLEASE REPORT ANY SUSPECTED ABUSE OR DIVERSION OF OPIOIDS, OR ANY OTHER IMPROPER BEHAVIOR WITH RESPECT TO OPIOIDS, TO THE DEPARTMENT OF HEALTH'S COMPLAINT INTAKE LINE:

    [NUMBER OF INTAKE LINE]

  3. The department shall refer reports received to the appropriate health-related board or law enforcement official.

Acts 2018, ch. 675, § 1.

Effective Dates. Acts 2018, ch. 675, § 2. January 1, 2019.

63-1-602. Protection of employees or persons who report information relative to opiod abuse or diversion.

  1. No employee of an entity that prescribes, dispenses, or handles opioids shall be discharged or terminated solely for reporting information in good faith to the department of health.
  2. No person licensed under this title shall suffer an adverse licensure action solely for reporting information in good faith to the department of health.
  3. A person who reports information in good faith to the department of health is immune from civil liability related to the report.

Acts 2018, ch. 675, § 1.

Effective Dates. Acts 2018, ch. 675, § 2. January 1, 2019.

Chapter 2
Medical Records

63-2-101. Release of medical records — Definitions.

    1. Notwithstanding any other provision of law to the contrary, a health care provider shall furnish to a patient or a patient's authorized representative a copy or summary of such patient's medical records, at the option of the health care provider, within ten (10) working days upon request in writing by the patient or such representative.
    2. If a provider fails to comply with subdivision (a)(1), proper notice shall be given to the provider's licensing board or boards, and the provider may be subject to disciplinary actions that include sanctions and a monetary fine.
      1. Except as otherwise provided by law, such patient's medical records shall not constitute public records, and nothing contained in this part shall be deemed to impair any privilege of confidentiality conferred by law on patients, their personal representatives or heirs. Nothing in this subsection (b) shall impair or abridge the right of the patient or the patient's authorized representative to obtain copies of the patient's hospital records in the manner provided in § 68-11-304. Nothing in this subsection (b) shall be construed as prohibiting a patient's medical records from being subpoenaed by a court of competent jurisdiction.
      2. As used in subdivision (b)(1)(A), “medical records” includes any list of patients that is compiled or maintained by or for such patient's health care provider.
    1. Except for any statutorily required reporting to health or government authorities and except for access by an interested third-party payer or their designee for the purpose of utilization review, case management, peer reviews or other administrative functions, the name and address and other identifying information of a patient shall not be divulged. The name and address and other identifying information shall not be sold for any purpose. Any violation of this subdivision (b)(2) shall be an invasion of the patient's right to privacy.
    2. Except as otherwise authorized in this section, title 38, chapter 7, part 1, title 68, chapter 11, part 3 and title 68, chapter 11, part 15, a health care provider shall have in place a policy to protect the dignity of a patient, even if the patient dies or becomes incapacitated, by limiting the use and disclosure of medical records, images, videos or pictures intended to be used for appropriate medical educational purposes, even if the patient's information is de-identified. The policy shall include when and to whom it is appropriate to use and disclose the patient's information, and when a written authorization from the patient or their authorized representative is required, whenever it is reasonably possible to obtain it, prior to use or disclosure. If the patient becomes incapacitated or dies, and there is no legal representative for the patient, the patient's next of kin will be considered to be an authorized representative for the patient. When required the written authorization will include the core elements required by 45 CFR Parts 160 and 164, “Standards for Privacy of Individually Identifiable Health Information.”
  1. As used in this chapter:
    1. “De-identified” means there is no reasonable basis to believe that the information can be used to identify an individual and there is compliance with the requirements for de-identification outlined in 45 CFR Part 164, § 164.514 “Other requirements relating to uses and disclosures of protected health information”;
    2. “Health care provider” means any person required to be licensed under this title;
    3. “Incapacitated” means that a patient is in a physical or mental condition such that the patient is incapable of granting or denying informed consent; and
    4. “Medical records” means all medical histories, records, reports and summaries, diagnoses, prognoses, records of treatment and medication ordered and given, X-ray and radiology interpretations, physical therapy charts and notes and lab reports.
  2. Nothing in this chapter shall be construed to prevent a true, correct and complete copy of the medical records from being subject to a subpoena duces tecum.
  3. To further the effectiveness of the immunization program of the department of health, a physician or any third party payor or health insurance entity regulated by the department of commerce and insurance doing business in Tennessee, or any entity that has elected, organized and qualified as a self-insured entity that provides information to the department regarding a child's immunization status for any of the following purposes shall not be subject to liability or cause of action or a claim of any nature, including any licensing board disciplinary action, arising solely from the disclosure of information concerning such child's immunization status:
    1. Compliance with the laws regarding child care and school attendance;
    2. Ensuring that a child receives such immunization as is medically appropriate or assisting in efforts to ensure a child is appropriately immunized;
    3. Providing immunization information to the immunization registry maintained by the department;
    4. Insuring compliance with the Families First Act, compiled in title 71, chapter 3, part 1; or
    5. Providing information that will allow the department to determine immunization levels in Tennessee.
  4. All information received by the department pursuant to this part from any source shall be confidential and unavailable to the public. Contact of a parent or guardian of a child by the department regarding the child's immunization status as the result of the department's contact with the physician shall not be held to be a breach of confidentiality by the reporting physician.
  5. The names of all children shall be included on the immunization registry established by title 37, chapter 10, part 4, unless such child's custodial parent or guardian objects to the inclusion of the child's name on the immunization registry to the department. The department shall notify the child's custodial parent or guardian in writing within six (6) months of the child's birth that inclusion on the immunization registry is not mandatory. Upon such written or oral request of exclusion by the child's custodial parent or guardian, the department shall either remove the child's name from the immunization registry or refrain from adding the child's name to the immunization registry and confirm in writing to the child's custodial parent or guardian that the child's name has been excluded from the immunization registry.
  6. Notwithstanding this part or any other law to the contrary, it shall not be unlawful to disclose, nor shall there be any liability for disclosing, medical information in response to a subpoena, court order or request authorized by state or federal law.
  7. Providers, as defined in § 71-5-2503, shall make available for inspection and copying to the office of inspector general and the medicaid fraud control unit, upon request, no later than by the close of business on the next business day, a complete set of all medical records requested in connection with an investigation being pursued by the agency or shall provide a compelling reason why the requested records cannot be produced; provided, that no such records shall be removed from the grounds of the provider's office without the provider's consent, unless the office of inspector general or the medicaid fraud control unit reasonably believes that the requested documents are about to be altered or destroyed.
  8. On request of a provider, a duly authorized agent of the requesting agency shall sign a document acknowledging receipt of records produced pursuant to this section. On request of a duly authorized agent of the requesting agency, a duly authorized agent of the provider shall sign a document acknowledging the return of specific records to the provider.
  9. No person or entity shall be subject to any civil or criminal liability for releasing patient information in response to a request from the office of inspector general or the medicaid fraud control unit.

Acts 1990, ch. 1067, § 1; 1996, ch. 862, §§ 1, 2; 1996, ch. 881, § 2; 1997, ch. 420, §§ 1, 2; 1999, ch. 386, § 1; 2003, ch. 40, § 1; 2005, ch. 113, § 1; 2005, ch. 474, § 12; 2010, ch. 862, §§ 2, 3.

Compiler's Notes. Acts 2010, ch. 862, § 1 provided that the act shall be known and may be cited as the “Colby Stansberry Act.”

Cross-References. Confidentiality of public records, § 10-7-504.

Hospital records, access, § 68-11-304.

Law Reviews.

Can We Talk? (Jerry Potter), 38 No. 11 Tenn. B.J. 14 (2002).

Can We Talk? The Rest of the Story or Why Defense Attorneys Should Not Talk to the Plaintiff's Doctors (Bobby Russ), 39 No. 2 Tenn. B.J. 29 (2003).

HIPAA Violations on Social Media: Will HHS Continue to Ignore?, 45 U. Mem. L. Rev. 633 (2015).

Physician-Patient Confidentiality in Health Care Liability Actions: HIPAA's Preemption of Ex Parte Interviews with Treating Physicians Through the Obstacle Test, 44 U. Mem. L. Rev. 97 (2013).

Attorney General Opinions. Release of medical records by dentists, OAG 97-030, 1997 Tenn. AG LEXIS 29 (3/31/97).

63-2-102. Costs of reproduction, copying or mailing of records.

  1. The party requesting the patient's records is responsible to the provider for the reasonable costs of copying and mailing such patient's records. For other than records involving workers' compensation cases, such reasonable costs shall not exceed twenty dollars ($20.00) for medical records five (5) pages or less in length and fifty cents (50¢) per page for each page copied after the first five (5) pages and the actual cost of mailing. Any third-party provider of record copying and related services shall be subject to the reasonable cost limits contained in this section and shall not impose any charge or fee for such services in excess of such cost limits. The costs charged for reproducing records of patients involved in a workers' compensation claim shall be as defined in § 50-6-204. A health care provider shall not charge a fee for copying or notarizing a medical record when requested by the department pursuant to a complaint, inspection or survey as set forth in § 63-1-117.
  2. Any increase in charges for copying and certifying medical records permitted by this section that is above those charges established by this section as it existed on January 1, 2010, shall not apply to requests for medical records made by the department of human services, and charges for copying and certifying medical records requests made by the department of human services shall remain the same as existed under this section as of January 1, 2010.
    1. Upon request, the provider shall submit a notarized affidavit by the custodian of records certifying that the records provided in response to the request:
      1. Are true and correct copies of records in the custody of the affiant;
      2. Were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of and a business duty to record or transmit those matters;
      3. Were kept in the course of regularly conducted activity; and
      4. Were made by the regularly conducted activity as a regular practice.
    2. In addition to the charge for the copies of the record, the provider may charge up to twenty dollars ($20.00) for the affidavit described in this subsection (c), and the records submitted with that affidavit, and the affidavit shall qualify for the business records exception to the hearsay rule.
  3. Nothing in this chapter shall be construed as superseding any provision of law that establishes specific costs for the reproduction, copying or mailing of records.
  4. Payment of such costs may be required by the provider prior to the records being furnished. Upon payment of the costs described in this section, the patient or a patient's authorized representative shall have the right to receive the medical records without delay.
  5. In workers' compensation cases, a request for medical records shall include a medical or anatomical impairment rating as required by § 50-6-246 [See the Compiler’s Notes].

Acts 1990, ch. 1067, § 1; 1996, ch. 881, § 3; 1997, ch. 425, §§ 1, 2; 2000, ch. 825, § 1; 2002, ch. 523, § 2; 2010, ch. 865, § 1.

Compiler's Notes. Acts 2013, ch. 289, § 92, effective July 1, 2014, amends § 50-6-246, referred to in (f), by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law. Thus, this section remains in effect as to injuries occurring prior to July 1, 2014.

Law Reviews.

Obtaining medical records for mental health evaluations (David L. Raybin), 37 No. 7 Tenn. B.J. 27 (2001).

63-2-103. Authority to promulgate regulations regarding retention of physician medical records — Limit on retention of mammography records.

  1. The board of medical examiners is authorized to promulgate regulations regarding the retention of physician medical records as defined in § 63-2-101(c).
  2. Notwithstanding any law or rule to the contrary, such retention of mammography records shall not exceed ten (10) years.

Acts 2013, ch. 113, § 2.

Chapter 3
Podiatrists

Part 1
General Provisions

63-3-101. “Podiatrist” defined — Performance of ankle surgery.

  1. Within this chapter, “podiatrist” means one who examines, diagnoses or treats, medically mechanically or surgically, the ailments of the human foot, ankle and soft tissue structures extending no higher than the distal tibial metaphyseal flair, including the use and prescribing of drugs and medications, but excluding the direct applications of general anesthesia by a podiatrist and the amputation of the foot. A podiatrist may perform Achilles tendon repair, subject to subsection (b), but may not perform surgery on Pilon fractures or tibial fractures that do not enter the ankle joint.
  2. A licensed podiatrist may perform ankle surgery only when that podiatrist meets the requirements of either subdivision (b)(1) or (b)(2):
    1. Was, prior to October 2, 1995, credentialed to perform ankle surgery by a JCAHO accredited hospital in Tennessee or JCAHO accredited ambulatory surgical treatment center in Tennessee; provided, that a podiatrist who qualifies to perform ankle surgery under this subdivision (b)(1) must, if the podiatrist wishes to continue to perform ankle surgery:
      1. Notify the board as to the hospital or ambulatory surgical treatment center at which the podiatrist was credentialed to perform ankle surgery prior to October 2, 1995;
      2. Obtain and maintain evidence of obtaining at least ten (10) hours of approved continuing education related to ankle surgery annually; and
      3. Comply with any other requirements established by the board to ensure continued proficiency in performing ankle surgery; or
    2. Has completed a surgical residency program at least twenty-four (24) months in length that has been approved by the council on podiatric medical education and is currently eligible for certification to perform reconstructive rearfoot/ankle surgery by the American Board of Podiatric Surgery; provided, that a podiatrist who qualifies to perform ankle surgery under this subdivision (b)(2) must obtain certification to perform reconstructive rearfoot/ankle surgery from the American Board of Podiatric Surgery within six (6) years of May 24, 2000, or within six (6) years of first becoming eligible for certification, whichever date is later, and may not continue to perform ankle surgery if that podiatrist has not obtained certification by the end of the six-year period.
  3. A licensed podiatrist may perform ankle surgery only in an accredited hospital or ambulatory surgical treatment center licensed under title 68 at which the podiatrist has surgical privileges to perform ankle surgery. For purposes of this subsection (c), an accredited hospital is one that is accredited by joint commission or the American Osteopathic Association, and an accredited ambulatory surgical treatment center is one that is accredited by joint commission, Accreditation Association for Ambulatory Health Care or American Association for Accreditation of Ambulatory Surgical Facilities. A podiatrist who performs ankle surgery in an ambulatory surgical treatment center must first have surgical privileges to perform ankle surgery at a local hospital. A licensed podiatrist who performs ankle surgery must meet the same standard of care applicable to orthopedic surgeons who perform ankle surgery.
  4. Licensed podiatrists may perform nonsurgical care on the ankle without meeting the requirements of subsection (b).
  5. A licensed podiatrist may collaborate with a physician assistant or an orthopedic physician assistant licensed pursuant to chapter 19 of this title. A podiatrist collaborating with a physician assistant pursuant to this subsection (e) shall comply with the requirements of and any rules adopted pursuant to §§ 63-19-106 and 63-19-107 governing collaboration with a physician assistant. A podiatrist collaborating with an orthopedic physician assistant pursuant to this subsection (e) shall comply with the requirements of and any rules adopted pursuant to §§ 63-19-203 — 63-19-205 governing collaboration with an orthopedic physician assistant.

Acts 1931, ch. 31, § 1; C. Supp. 1950, § 7182.1; Acts 1963, ch. 290, § 1; 1971, ch. 188, § 2; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-301; Acts 2000, ch. 828, § 1; 2004, ch. 668, § 1; 2009, ch. 422, § 11; 2016, ch. 946, § 1; 2018, ch. 610, § 2.

Compiler's Notes. JCAHO, referred to in this section, is the Joint Commission on Accreditation of Healthcare Organizations.”

Amendments. The 2018 amendment, in (e), substituted “may collaborate with” for “may supervise” in the first sentence, substituted “A podiatrist collaborating with” for “A podiatrist supervising” at the beginning of the second and third sentences, substituted “collaboration with a physician assistant” for “the supervision of a physician assistant” at the end of the second sentence, and substituted “collaboration with” for “the supervision” of in  the last sentence.

Effective Dates. Acts 2018, ch. 610, § 42. July 1, 2018.

Cross-References. Assignment of insurance benefits to health care provider, § 56-7-120.

Liability of professional societies, title 62, ch. 50, part 1.

Occupation tax on podiatrists, title 67, ch. 4, part 17.

State examining boards, general provisions, title 4, ch. 19, part 1.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777.

NOTES TO DECISIONS

1. Ankle Injury.

Determination of the board of podiatry that the treatment of soft tissue involved in an ankle sprain fell within the definition of podiatrist was not supported by the evidence. Tennessee Medical Ass'n v. Board of Registration in Podiatry, 907 S.W.2d 820, 1995 Tenn. App. LEXIS 377 (Tenn. Ct. App. 1995).

63-3-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the board of podiatric medical examiners; and
  2. “Division” means the division of health related boards of the department of health.

Acts 1931, ch. 31, § 3; C. Supp. 1950, § 7182.15 (Williams, § 7182.16); Acts 1971, ch. 188, § 1; T.C.A. (orig. ed.), § 63-302; Acts 1984, ch. 937, § 4; 2005, ch. 228, § 1.

63-3-103. Board of podiatric medical examiners — Members.

  1. A board of examiners is established, to be known by the name and title of “board of podiatric medical examiners.”
  2. The governor shall appoint four (4) persons who have been licensed podiatrists for a period of at least two (2) years in this state as members of this board. The terms of office shall be for four (4) years. In making appointments to the board of podiatric medical examiners, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority.
  3. Upon the expiration of the term of a member, the governor shall appoint the member's successor for a term of four (4) years.
  4. The governor has the power to remove from office members of the board for neglect of duties as required by this chapter, or for malfeasance in office and incompetency or for unprofessional conduct. The governor has the authority to fill any vacancy caused by the removal of any member of the board by the member's resignation or death, from a list of all licensed podiatrists who have practiced not less than two (2) years in this state.

Acts 1931, ch. 31, § 3; mod. C. Supp. 1950, § 7182.13 (Williams, § 7182.14); Acts 1971, ch. 188, § 1; T.C.A. (orig. ed.), § 63-303; Acts 1988, ch. 1013, § 40; 1993, ch. 181, § 2; 2005, ch. 228, § 2; 2009, ch. 422, §§ 1, 2, 12.

Compiler's Notes. The regulatory board created by this section is attached to the division of health related boards in the department of health.

The board of podiatric medical examiners, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Cross-References. Prevention of HIV transmission, rulemaking authority, § 68-11-222.

63-3-104. Organization, meetings and compensation of board.

  1. The board shall elect a chair and a secretary from its own members.
  2. The board shall hold one (1) regular meeting in each year and such additional meetings at such times and places as it may determine.
  3. Each member of the board shall receive one hundred dollars ($100) per diem when actually engaged in the discharge of official duties and, in addition, shall be reimbursed for all travel and other necessary expenses. All expenses shall be claimed and paid in accordance with prevailing travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1931, ch. 31, § 3; C. Supp. 1950, § 7182.13 (Williams, § 7182.14); Acts 1971, ch. 188, § 1; 1973, ch. 393, § 3; 1976, ch. 796, § 1; 1976, ch. 806, § 1(111); T.C.A., § 63-304; Acts 2009, ch. 422, § 3.

63-3-105. Disposition of fees — Expenditures.

  1. All fees and moneys from whatever source coming into the hands of the board shall be paid by the board to the state treasurer and become a part of the general fund.
  2. The commissioner of finance and administration shall make allotments out of the general fund for the proper expenditures of the board, and no expenditure may be made by the board until allotment therefor has been made by the commissioner. The allotments for the operation of the board shall be disbursed under the general budgetary laws of the state.

Acts 1931, ch. 31, § 3; C. Supp. 1950, § 7182.13 (Williams, § 7182.14); modified; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1971, ch. 188, §§ 1-3; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-305.

63-3-106. General powers of board.

The board has the powers and duties, in addition to powers and duties granted to or imposed upon it by the other sections of this chapter, to:

  1. Adopt and promulgate rules and regulations as may be necessary to govern its proceedings and carry into effect the purpose of this chapter;
  2. Conduct examinations to ascertain the qualifications and fitness of applicants for a license to practice podiatry in this state;
  3. Provide standards by which podiatry schools and colleges shall be approved;
  4. Direct the division to issue a license for applicants who successfully pass the examination for the practice of podiatry;
  5. Conduct hearings, to revoke or suspend any license or certificate under the authority of this chapter or any previous laws authorizing the holder thereof to practice podiatry for violations by a licensee of any of the provisions of this chapter or any rule or regulation of the board properly adopted and promulgated by the board; and
  6. Sponsor, conduct or approve such educational programs as are necessary to carry out and make effective this chapter.

Acts 1931, ch. 31, § 2; C. Supp. 1950, § 7182.2; impl. am. Acts 1971, ch. 161, § 3; Acts 1971, ch. 188, §§ 1, 5; 1973, ch. 393, § 5; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-306; Acts 1984, ch. 937, § 5.

63-3-107. Unlawful practice.

  1. It is unlawful for any person to practice or attempt to practice podiatry in this state unless such person has been issued a valid and current license to practice podiatry by this board as provided by this chapter.
  2. If any person uses any name or title that would designate that person as a podiatrist or imply that that person was or is qualified to practice podiatry under this chapter, it is deemed prima facie evidence of practicing within the meaning of this chapter.

Acts 1931, ch. 31, § 2; C. Supp. 1950, § 7182.2; impl. am. Acts 1971, ch. 161, § 3; Acts 1971, ch. 188, §§ 1, 5; 1973, ch. 393, § 5; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-307; Acts 1984, ch. 937, § 6.

63-3-108. Exemptions.

This chapter shall not apply to the commissioned physicians and surgeons of the United States army, navy, air force or marine hospital service in the actual performance of their official duties, nor to physicians and surgeons or to osteopathic physicians and surgeons regularly licensed under the laws of this state, nor to visiting podiatrists called into consultation in this state from another state where they are duly qualified under the laws of that state to practice podiatry.

Acts 1931, ch. 31, § 2; 1949, ch. 152, § 1; C. Supp. 1950, § 7182.3 (Williams, § 7182.4); modified; Acts 1973, ch. 393, § 6; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-308.

63-3-109. Academic license — License to practice — Requirements — Podiatrists licensed in other states.

  1. Any person desiring an academic license to participate in a residency program shall:
    1. Apply on a form prescribed by the board or via online application for an academic license;
    2. Pay a fee as determined by the board; and
    3. Have a residency program accepted by the board certify that the applicant has been accepted for its program.
  2. The academic license shall terminate upon the applicant leaving the residency program.
  3. Any person desiring to become licensed to practice podiatry in this state must:
    1. Make application to the secretary of the board on a form prescribed by the board;
    2. Pay an application fee as determined by the board;
    3. Pass the examination conducted or accepted by the board; and
    4. Successfully complete at least a one-year residency program approved by the Council on Podiatric Medical Education or its successor organization.
  4. The board shall have the authority to issue locum tenens licenses to podiatrists licensed in another state who wish to practice podiatry in this state for a limited period of time and who meet all the requirements established by the board by rule for a locum tenens license.

Acts 1976, ch. 796, § 1; T.C.A., § 63-309; Acts 1984, ch. 937, § 7; 1986, ch. 675, § 14; 1990, ch. 886, § 1; 2009, ch. 422, §§ 4-7; 2014, ch. 949, § 4.

63-3-110. Qualifications of applicants — Educational standards.

No person shall be entitled to take any examination for a license unless that person furnishes the board with satisfactory proof that the person is at least eighteen (18) years of age, is of good moral character and has graduated from a college of podiatric medicine which is accredited by the Council on Podiatric Medical Education or its successor organization.

Acts 1931, ch. 31, § 2; 1935, ch. 60, § 1; 1949, ch. 152, § 1; C. Supp. 1950, § 7182.3 (Williams, § 7182.4); Acts 1971, ch. 161, § 2; 1971, ch. 188, §§ 1, 6; 1973, ch. 393, § 8; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-310; Acts 1984, ch. 937, § 8; 2009, ch. 422, § 8.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

63-3-111. Contents of examination — Grade requirement — Fee.

    1. The board may conduct examinations at such times and places as it may designate.
    2. Examinations shall be in the English language, written and clinical, and shall include subjects of histology, surgery, hygiene, dermatology, anatomy, physiology, chemistry, bacteriology, pathology, diagnosis and treatment, materia medica and therapeutics, and clinical podiatry and such additional subjects as are pertinent to podiatry; but such examinations shall be so limited in their scope as to cover only the requirements for podiatry education as provided in this chapter.
    3. The board may accept the report of the National Board of Podiatric Medical Examiners on any examinee.
  1. The board shall establish the minimum passing grade by regulation.
  2. The board may set an examination fee.

Acts 1931, ch. 31, § 2; C. Supp. 1950, § 7182.5 (Williams, § 7182.6); Acts 1971, ch. 188, § 1; 1973, ch. 393, § 9; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-311; Acts 1984, ch. 937, § 9; 1990, ch. 886, § 2; 2009, ch. 422, § 9.

63-3-112. Reexamination.

An applicant who fails to pass an examination satisfactory to the board, and is therefore refused a license, is entitled, within six (6) months after such refusal, to a reexamination upon payment of an additional fee as set annually by the board for each such reexamination.

Acts 1931, ch. 31, § 2; C. Supp. 1950, § 7182.7 (Williams, § 7182.8); Acts 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-312; Acts 1984, ch. 937, § 10; 1986, ch. 675, § 15; 1989, ch. 523, § 65.

63-3-113. Issuance of licenses.

If an applicant successfully passes the examination provided by this chapter and meets all of the requirements of this chapter, the board shall direct the division to issue the applicable license.

Acts 1931, ch. 31, § 2; 1949, ch. 152, § 1; C. Supp. 1950, § 7182.3 (Williams, § 7182.4); Acts 1971, ch. 188, § 7; 1973, ch. 393, § 10; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-313; Acts 1984, ch. 937, § 11.

63-3-114. Reciprocity.

The board, in its discretion, may waive the examination required by § 63-3-109(c)(3) and may issue a license to any applicant who holds or possesses a valid license to practice podiatry in another state; provided, that the requirements for licensure in such state are, in the opinion of the board, at least equivalent to the requirements for licensure provided by this chapter and that such applicant pays a fee as set by the board.

Acts 1931, ch. 31, § 2; C. Supp. 1950, § 7182.4 (Williams, § 7182.5); Acts 1971, ch. 188, § 8; 1973, ch. 393, § 11; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-314; Acts 1984, ch. 937, § 12; 1989, ch. 523, § 66.

63-3-115. Renewal of license.

  1. Each person licensed to practice as a podiatrist in this state shall biennially apply to the board for renewal of the person's license and shall pay a renewal fee set by the board. A podiatrist who fails to renew the license by the date of expiration of the license shall not continue to practice as a podiatrist in this state.
  2. A podiatrist who fails to timely renew the license may seek reinstatement from the board. The board may reinstate the license upon good cause shown, upon payment of all past due renewal fees and a late renewal fee and upon compliance with any other reasonable conditions imposed by the board.
  3. The board may utilize the renewal system described in § 63-1-107.
  4. Any licensed podiatrist who has retired from practice in this state shall not be required to renew the license if the person retired from practice files with the board an affidavit of retirement on a form furnished by the board. The affidavit shall state the date on which the person retired from practice and such other facts as the board deems necessary to verify retirement. If the person thereafter wishes to reenter practice in this state, the person shall apply for license reactivation, pay the reactivation fee set by the board and meet such other reasonable requirements deemed necessary by the board.

Acts 1931, ch. 31, § 4; C. Supp. 1950, § 7182.16 (Williams, § 7182.17); Acts 1973, ch. 393, § 12; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-315; Acts 1984, ch. 937, § 13; 1986, ch. 675, § 16; 1989, ch. 523, §§ 67, 68; 2005, ch. 228, § 4.

63-3-116. Continuing medical education — Exemptions.

  1. As a condition of the biennial renewal of a podiatrist license, every licensed podiatrist must obtain at least fifteen (15) hours of continuing medical education each calendar year in programs approved by the board. The only basis upon which a podiatrist may seek an exemption from this requirement or an extension of time for meeting this requirement is illness or disability.
  2. Podiatrists who have properly retired their licenses pursuant to § 63-3-115(d) are exempt from the requirement of subsection (a).

Acts 1931, ch. 31, § 5; 1949, ch. 152, § 3; C. Supp. 1950, § 7182.17 (Williams, § 7182.18); Acts 1971, ch. 188, § 9; 1974, ch. 495, § 7; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-316; Acts 1984, ch. 937, § 14; 1986, ch. 675, §§ 3, 17; 1988, ch. 600, § 1; 1989, ch. 360, § 17; 1989, ch. 523, §§ 69, 70; 2005, ch. 228, § 5.

NOTES TO DECISIONS

1. Construction.

Provision in an agreement between the Tennessee board of registration in podiatry and the podiatrist that precluded the podiatrist from reactivating his license in Tennessee was upheld, because the podiatrist made a knowing and voluntary waiver of his rights to apply for the license in exchange for settlement of numerous claims asserted against him; the fact that the podiatrist later learned that he was precluded from receiving federal healthcare payments was no reason to set aside the provision, which was within the full authority of the board. Bacardi v. Tenn. Bd. of Registration in Podiatry, 124 S.W.3d 553, 2003 Tenn. App. LEXIS 402 (Tenn. Ct. App. 2003), appeal denied, Bacardi v. Tn. Bd. of Registration in Podiatry, — S.W.3d —, 2003 Tenn. LEXIS 872 (Tenn. 2003).

63-3-117. Application of health laws.

Licensed podiatrists shall observe and be subject to all state and municipal regulations relating to the control of contagious and infectious diseases and all matters pertaining to public health, making reports to proper health officers in the same manner as other practitioners of the healing arts are required to make.

Acts 1931, ch. 31, § 8; C. Supp. 1950, § 7182.20 (Williams, § 7182.21); Acts 1971, ch. 188, § 1; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-317.

63-3-118. Services provided by physician assistant or orthopedic physician assistant collaborating with podiatrist.

A physician assistant collaborating with a licensed podiatrist shall not provide services that are outside of the scope of practice of a podiatrist as set forth in § 63-3-101 and may prescribe only drugs that are rational to the practice of podiatry. An orthopedic physician assistant collaborating with a licensed podiatrist shall not provide services that are outside of the scope of practice of a podiatrist as set forth in § 63-3-101.

Acts 2016, ch. 946, § 2; 2018, ch. 610, § 3.

Compiler's Notes. Former § 63-3-118 (Acts 1931, ch. 31, § 9; C. Supp. 1950, § 7182.21 (Williams, § 7182.22); Acts 1971, ch. 188, § 1; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-318), concerning jury duty exemption for licensed podiatrists, was repealed by Acts 2008, ch. 1159, § 6, effective January 1, 2009.

Amendments. The 2018 amendment substituted “collaborating with” for “supervised by” in the first and second sentences.

Effective Dates. Acts 2018, ch. 610, § 42. July 1, 2018.

63-3-119. Suspension or revocation of license — Enforcement.

  1. The board has the duty and authority to suspend for a specified time, within the discretion of the board or to revoke any license to practice podiatry or to otherwise discipline any licensee or refuse to grant any certificate of fitness whenever the licensee or applicant is found guilty of any of the following acts or offenses:
    1. Fraud in procuring a license or certificate;
    2. Conviction of a felony, conviction of any offense under state or federal drug laws or conviction of any offense involving moral turpitude;
    3. Habitual intoxication or personal misuse of any drugs;
    4. Immoral, unethical, unprofessional or dishonorable conduct;
    5. Solicitation by agents or persons or profiting by the acts of those representing themselves to be agents of the licensee or the certificate holder;
    6. Division of fees or agreeing to split or divide fees received for professional services with any person for bringing or referring a patient;
    7. Professional connection or association with any person, firm or corporation in any manner in an effort to avoid and circumvent this chapter or lending one's name to another for the illegal practice of podiatry by such person;
    8. Violation or attempted violation, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate this chapter or any lawful order of the board; issued pursuant thereto, or any criminal statute of this state;
    9. Giving of testimonials, directly or indirectly, concerning the supposed virtue of secret therapeutic agents or proprietary preparations, such as remedies, vaccines or other articles or materials that are offered to the public, claiming radical cure or prevention of disease by their use;
    10. Any other unprofessional or unethical conduct that may be specified by the board from time to time by means of rules and regulations duly published and promulgated by the board or the violation of any provision of this chapter;
    11. Making false statements or representations or being guilty of fraud or deceit in the practice of podiatry;
    12. Invasion of a field of practice in which the licensee is not licensed to practice or is not within the limits of the licensee's respective callings;
    13. Dispensing, prescribing or otherwise distributing any controlled substance or any other drug not in the course of professional practice or not in good faith to relieve pain and suffering, or not to cure an ailment, physical infirmity or disease;
    14. Dispensing, prescribing or otherwise distributing any controlled substance, controlled substance analogue or any other drug to any person in violation of any law of the state or of the United States;
    15. Practicing podiatry under any trade name or a name designating a given location or the name of another podiatrist or any name other than that which appears on the practitioner's license or using any title other than “podiatrist”; provided, that “foot specialist” may be used as an explanatory term of the title “podiatrist” and not alone or as a substitute for the title “podiatrist”;
    16. Willful violation of the rules and regulations that may be promulgated by the board of podiatric medical examiners to regulate advertising by practitioners who are under the jurisdiction of the board;
    17. 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;
    18. Engaging in the practice of podiatry when mentally or physically unable to safely do so; or
    19. Gross health care liability or a pattern of continued or repeated health care liability, ignorance, negligence or incompetence in the course of the practice of podiatry.
  2. The board of podiatric medical examiners may adopt rules and regulations to regulate the nature, manner, content and extent of advertising by practitioners who are under the jurisdiction of the board. All methods must be allowed such as: newspaper, radio and television.
    1. For purposes of enforcement of this section, the board shall, upon probable cause, have authority to compel an applicant or licensee to submit to a mental and/or physical examination by a designated committee of at least three (3) practicing physicians, including a psychiatrist where a question of mental condition may be involved.
    2. The applicant or licensee shall have the right to have an independent medical practitioner present during such examination and to have an independent physical or mental examination, the report of which shall be filed with the board for consideration.
    3. The committee will submit a report of its findings to the board, which will then hold a hearing as provided in § 63-3-120.
  3. An action taken under this section shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 1, part 1 of this title.

Acts 1931, ch. 31, § 2; C. Supp. 1950, § 7182.8 (Williams, § 7182.9); Acts 1971, ch. 188, §§ 1, 10; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-319; Acts 1985, ch. 120, §§ 2-6; 2005, ch. 228, § 3; 2009, ch. 422, § 10; 2012, ch. 798, § 34; 2012, ch. 848, § 66; 2018, ch. 745, § 22.

Amendments. The 2018 amendment added (d).

Effective Dates. Acts 2018, ch. 745, § 46. July 1, 2018.

Cross-References. Grounds for license denial, suspension or revocations, § 63-6-214.

63-3-120. Administrative procedure.

All proceedings for disciplinary action against a licensee under this chapter shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1931, ch. 31, § 2; C. Supp. 1950, § 7182.9 (Williams, § 7182.10); Acts 1971, ch. 188, § 1; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-320; Acts 1985, ch. 120, § 7.

Cross-References. Review of quasi-judicial bodies generally, title 27, ch. 9.

63-3-121. Enjoining violations.

  1. The board, in addition to the powers and duties expressly granted by this chapter in the matter of suspension or revocation of a license and in the matter of the refusal to issue a certificate, is authorized and empowered to petition any circuit or chancery court, having jurisdiction, to enjoin any person who is practicing or attempting to practice podiatry without possessing a valid license to so practice and to enjoin any person, firm or corporation from performing any act or rendering any service that constitutes the practice of podiatry as defined by this chapter. No injunction bond shall be required of the board.
  2. Jurisdiction is conferred upon the circuit and chancery courts of the state to hear and determine such causes as chancery causes and to exercise full and complete jurisdiction in such injunctive proceedings.

Acts 1931, ch. 31, § 2; C. Supp. 1950, § 7182.10 (Williams, § 7182.11); Acts 1971, ch. 188, § 1; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-321.

Cross-References. Enjoining violations, § 63-1-121.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

63-3-122. District attorneys to assist board.

  1. The board at all times has the power to call upon the district attorneys general for the state in the various districts to assist the board.
  2. It is hereby declared to be the duty of all district attorneys general throughout the state to assist the board, upon its request, in any suit for injunction or prosecution instituted by the board without charge or additional compensation to the district attorneys general.

Acts 1931, ch. 31, § 2; 1949, ch. 152, § 2; mod. C. Supp. 1950, § 7182.11 (Williams, § 7182.12); Acts 1971, ch. 188, § 1; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-322.

63-3-123. Criminal penalties.

    1. Any person who violates any provision of this chapter commits a Class B misdemeanor.
    2. Upon being convicted of any violation of any provision of this chapter, any person who again violates any of the provisions of this chapter commits a Class E felony.
  1. Any person who has been enjoined by a court of competent jurisdiction from performing any acts or rendering any services that constitute the practice of podiatry as defined by this chapter who thereafter willfully violates the terms of the injunction by again performing such acts or rendering such services commits a Class E felony.

Acts 1931, ch. 31, § 2; C. Supp. 1950, § 7182.12 (Williams, § 7182.13); Acts 1971, ch. 188, § 1; 1976, ch. 796, § 1; T.C.A. (orig. ed.), § 63-323; Acts 1989, ch. 591, §§ 79, 80, 112.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

63-3-124. Retail sales of foot appliances and shoes.

No part or portion of this chapter shall be deemed to prohibit the usual and customary commercial sale and adjustment of foot appliances and remedies or shoes in retail stores.

Acts 1931, ch. 31, § 10; C. Supp. 1950, § 7182.22 (Williams, § 7182.23); T.C.A. (orig. ed.), § 63-326.

63-3-125. Regulations relating to X-ray procedures.

    1. The board shall adopt rules and regulations that establish minimum educational standards and criteria for persons operating X-ray equipment for diagnostic purposes in podiatrist offices.
    2. These regulations may include, but not be limited to, provisions for grandfathering, waiver, reciprocity, renewal, continuing education, fees, examination and hardship cases.
  1. After the effective date of the rules and regulations, no person shall perform X-ray procedures in a podiatrist office who does not meet these standards and who has not received a certificate of proficiency from the board.

Acts 1990, ch. 886, § 3.

63-3-126. Cost of prosecution — Administering oaths.

  1. The board shall promulgate rules governing the assessment of costs against a licensee or other person found by the board to have violated any provision of this chapter. The costs assessed by the board may include only those costs directly related to the prosecution of the charges against the licensee or other person, including investigatory costs where appropriate. The board shall determine the appropriate amount of costs, if any, to be assessed in a contested case. These costs shall be reasonable and proportionate in light of the violation committed by the licensee or other person.
    1. Any elected officer of the board, or any duly appointed or elected chair has the authority to administer oaths to witnesses. Upon probable cause being established, the board, by a vote of two thirds (2/3) of the members to which the board is entitled, may issue subpoenas for the attendance of witnesses and the production of documents and records.
    2. Service of a subpoena issued by the board shall be made by the sheriff of the county of residence of the licensee or person upon whom the subpoena is served.
      1. A licensee or person served by subpoena shall have thirty (30) days to request in writing a hearing before the board for the sole purpose of making a special appearance to quash or modify the subpoena. The subpoena for attendance of the person or the production of books and records shall be stayed until the board votes upon the request to quash or modify the subpoena. A majority vote of the members to which the board is entitled shall be required to quash or modify a subpoena.
      2. A motion to appeal from a decision by the board regarding a request to quash or modify a subpoena shall be made to the chancery court in Davidson County within fifteen (15) days of such decision.
    3. If any witness fails or refuses to obey a subpoena issued by it, the board is authorized to make application to any court of record in this state within the jurisdiction of which the witness is found or resides; and the court shall have power to attach the body of the witness and compel the witness to appear before the board and give testimony or produce books, records or papers as ordered. Any failure to obey the court order may be punished by the court issuing the order as a civil contempt.
    4. Each witness who appears before the board by order of the board shall receive for attendance the compensation provided by law for attendance of witnesses in a court of record, which shall be paid from the funds of the board in the same manner as all other expenses of the board are paid.

Acts 1999, ch. 437, § 3.

Cross-References. Payment of costs of investigation and prosecution, § 63-1-144.

Attorney General Opinions. The board of registration in podiatry has authority to issue administrative subpoenas to compel the attendance of witnesses or the production of documents prior to the commencement of an administrative action, OAG 01-055, 2001 Tenn. AG LEXIS (4/10/01).

63-3-127. Drug prescriptions.

  1. Any handwritten prescription order for a drug prepared by a podiatrist who is authorized by law to prescribe a drug must be legible so that it is comprehensible by the pharmacist who fills the prescription. The handwritten prescription order must contain the name of the prescribing podiatrist, the name and strength of the drug prescribed, the quantity of the drug prescribed, handwritten in letters or in numerals, instructions for the proper use of the drug and the month and day that the prescription order was issued, recorded in letters or in numerals or a combination thereof. The prescribing podiatrist must sign the handwritten prescription order on the day it is issued, unless it is a standing order issued in a hospital, a nursing home or an assisted care living facility as defined in § 68-11-201.
  2. Any typed or computer-generated prescription order for a drug issued by a podiatrist who is authorized by law to prescribe a drug must be legible so that it is comprehensible by the pharmacist who fills the prescription order. The typed or computer-generated prescription order must contain the name of the prescribing podiatrist, the name and strength of the drug prescribed, the quantity of the drug prescribed, recorded in letters or in numerals, instructions for the proper use of the drug, and the month and day that the typed or computer-generated prescription order was issued, recorded in letters or in numerals or a combination thereof. The prescribing podiatrist must sign the typed or computer-generated prescription order on the day it is issued, unless it is a standing order issued in a hospital, nursing home or an assisted care living facility as defined in § 68-11-201.
  3. Nothing in this section shall be construed to prevent a podiatrist from issuing a verbal prescription order.
    1. All handwritten, typed or computer-generated prescription orders must be issued on either tamper-resistant prescription paper or printed utilizing a technology that results in a tamper-resistant prescription that meets the current centers for medicare and medicaid service guidance to state medicaid directors regarding § 7002(b) of the United States Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007, P.L. 110-28, and meets or exceeds specific TennCare requirements for tamper-resistant prescriptions.
    2. Subdivision (d)(1) shall not apply to prescriptions written for inpatients of a hospital, outpatients of a hospital where the doctor or other person authorized to write prescriptions writes the order into the hospital medical record and then the order is given directly to the hospital pharmacy and the patient never has the opportunity to handle the written order, a nursing home or an assisted care living facility as defined in § 68-11-201 or inpatients or residents of a mental health hospital or residential facility licensed under title 33 or individuals incarcerated in a local, state or federal correctional facility.

Acts 2004, ch. 678, § 3; 2005, ch. 12, § 1; 2008, ch. 1035, §§ 2, 9; 2010, ch. 795, § 13; 2013, ch. 74, § 2.

Compiler's Notes. Acts 2004, ch. 678, § 1 provided that the title of the act is and may be cited as the “Medication Error Reduction Act of 2004.”

Acts 2004, ch. 678, § 2 provided that it is the intent of the general assembly to create a uniform standard that health care providers must follow in issuing written or electronic prescription orders. This standard is intended to reduce medication related errors, which represent a major source of medical errors in the health care system. The general assembly finds that reducing medical errors will result in greater safety for patients as well as cost savings for the health care system in this state. By adopting these standards, the general assembly intends to promote medical safety for all patients who are issued drug prescriptions in this state.

Acts 2004, ch. 678, § 11 provided that nothing in the act shall be construed as limiting any practitioner's or pharmacist's ability to order the use of or distribute nonprescription drugs or devices otherwise in accordance with applicable law.

Acts 2004, ch. 678, § 12 provided that nothing in the act shall be construed as limiting any professional nurse's ability to issue drugs in accordance with the provisions of § 63-7-124.

Acts 2004, ch. 678, § 13 provided that the department of health, division of health related boards and the board of pharmacy, are authorized to promulgate uniform rules to effect the purposes of this act in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The power and duty to enforce those rules shall be vested in the various boards that regulate health care providers affected by the act, in accordance with § 63-1-122 [repealed].

Acts 2004, ch. 678, § 14 provided that the act shall not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before July 1, 2004.

Acts 2010, ch. 795, § 8 provided that nothing in the act shall be construed as limiting any practitioner's or pharmacist's ability to order the use of or distribute non-prescription drugs or devices otherwise in accordance with applicable law.

Acts 2010, ch. 795, § 10 provided that nothing in the act shall be construed as limiting any professional nurse's ability to issue drugs in accordance with the provisions of § 63-7-124.

Acts 2010, ch. 795, § 11 provided that the department of health, division of health related boards and the board of pharmacy, are authorized to promulgate uniform rules to effect the purposes of the act in accordance with title 4, chapter 5. The power and duty to enforce those rules shall be vested in the various boards that regulate healthcare providers affected by the act, in accordance with § 63-1-122 [repealed].

Acts 2010, ch. 795, § 19 provided that the act shall not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before January 1, 2011.

63-3-128. [Repealed.]

Acts 2010, ch. 795, § 1, repealed by Acts 2018, ch. 883, § 3, effective January 1, 2019.

Compiler's Notes. Section 63-1-128, concerning prescriptions for Schedule II controlled substances, is repealed by Acts 2018, ch. 883, § 3, effective January 1, 2019.

Acts 2018, ch. 883, § 10 provided that the commissioner of health is authorized to promulgate rules to effectuate the purposes of the act. All rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in Tennessee Code Annotated, title 4, chapter 5.

Former § 63-1-128, concerned prescriptions for Schedule II controlled substances.

Part 2
Tennessee Orthotics, Prosthetics, and Pedorthics Practice Act of 2005

63-3-201. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Board” means the board that licenses and regulates podiatrists in Tennessee in part 1 of this chapter;
  2. “Commissioner” means the commissioner of health;
  3. “Custom fabricated and fitted device” means an orthosis, prosthesis or pedorthic device that is fabricated to original measurements or to a mold for use by a patient in accordance with a prescription from a health care practitioner authorized by law to write such prescriptions and that requires substantial clinical and technical judgment in its design and fitting;
  4. “Custom fitted device” means a prefabricated orthosis, prosthesis or pedorthic device sized or modified for use by the patient in accordance with a prescription from a health care practitioner authorized by law to write such prescriptions that requires substantial clinical judgment and substantive alteration for appropriate use;
  5. “Department” means the department of health;
  6. “Director” means the director of the division of health related boards;
  7. “Division” means the division of health related boards;
  8. “Facility” means the business location where orthotic, prosthetic or pedorthic care is provided. In the case of an orthotic/prosthetic facility, the orthotic/prosthetic facility has the appropriate clinical and laboratory space and equipment to provide comprehensive orthotic or prosthetic care; and, in the case of a pedorthic facility, the pedorthic facility has the appropriate clinical space and equipment to provide pedorthic care. Licensed orthotists, prosthetists and pedorthists must be available to either provide care or to supervise the provision of care by nonlicensed staff;
  9. “Licensed orthotist” means a person who is licensed under this part to practice orthotics and who represents the person to the public by title or description of services that includes the term “orthotic,” “orthotist,” “brace” or a similar title or description of services;
  10. “Licensed pedorthist” means a person who is licensed under this part to practice pedorthics and who represents the person to the public by the title or description of services that includes the term “pedorthic,” “pedorthist” or a similar title or description of services;
  11. “Licensed prosthetist” means a person who is licensed under this part to practice prosthetics and who represents the person to the public by title or description of services that includes the term “prosthetic,” “prosthetist,” “artificial limb” or a similar title or description of services;
  12. “Off-the-shelf device” means a prefabricated prosthesis or orthosis sized or modified for use by the patient in accordance with a prescription from a health care practitioner authorized by law to write such prescriptions that does not require substantial clinical judgment and substantive alteration for appropriate use;
  13. “Orthosis” means a custom designed, fabricated, fitted or modified device to correct, support or compensate for a neuro-musculoskeletal disorder or acquired condition. “Orthosis” does not include fabric or elastic supports, corsets, arch supports, low-temperature plastic splints, trusses, elastic hoses, canes, crutches, soft cervical collars, dental appliances or other similar devices that are carried in stock and sold without modification as over-the-counter items by a drug store, department store, corset shop or surgical supply facility;
  14. “Orthotic and prosthetic education program” means a course of instruction accredited by the Commission on Accreditation of Allied Health Education Programs (CAAHEP), consisting of:
    1. An adequate curriculum of college level training and instruction in math, physics, biology, chemistry and psychology; and
    2. A specific curriculum in orthotic or prosthetic courses, including:
      1. Lectures covering pertinent anatomy, biomechanics, pathomechanics, prosthetic-orthotic components and materials, training and functional capabilities, prosthetic or orthotic performance evaluation, prescription considerations, etiology of amputations and disease processes necessitating prosthetic or orthotic use and medical management;
      2. Subject matter related to pediatric and geriatric problems;
      3. Instruction in acute care techniques, such as immediate and early post-surgical prosthetics and fracture bracing techniques; and
      4. Lectures, demonstrations and laboratory experiences related to the entire process of measuring, casting, fitting, fabricating, aligning and completing prostheses or orthoses;
  15. “Orthotics” means the science and practice of evaluating, measuring, designing, fabricating, assembling, fitting, adjusting or servicing an orthosis, under an order from a licensed health care practitioner authorized by law to issue such an order, for the correction or alleviation of neuromuscular or musculoskeletal dysfunction, disease, injury or deformity;
  16. “Orthotist” means an allied health professional who is specifically trained and educated to provide or manage the provision of a custom-designed, fabricated, modified and fitted external orthosis to an orthotic patient, based on a clinical assessment and a prescription from a health care practitioner authorized by law to write such prescriptions, to restore physiological function or cosmesis;
  17. “Over-the-counter device” means a prefabricated, mass-produced device that is prepackaged and requires no professional advice or judgment in either size selection or use, including fabric or elastic supports, corsets, generic arch supports and elastic hose;
  18. “Pedorthic device” means therapeutic footwear, foot orthoses for use at the ankle or below and modified footwear made for therapeutic purposes, as prescribed by a licensed health care practitioner authorized by law to issue such prescription. “Pedorthic device” does not include nontherapeutic accommodative inlays or nontherapeutic accommodative footwear, regardless of method of manufacture, shoe modifications made for nontherapeutic purposes, unmodified, over-the-counter shoes or prefabricated foot care products;
  19. “Pedorthic education program” means a course of instruction accredited by the Board for Certification in Pedorthics, consisting of:
    1. A basic curriculum of instruction in foot-related pathology of diseases, anatomy and biomechanics;
    2. A specific curriculum in pedorthic courses, including lectures covering shoes, foot orthoses and shoe modifications, pedorthic components and materials, training and functional capabilities, pedorthic performance evaluation, prescription considerations, etiology of disease processes necessitating use of pedorthic devices, medical management and subject matter related to pediatric and geriatric problems; and
    3. Lectures, demonstrations, and laboratory experiences related to the entire process of measuring and casting, fitting, fabricating, aligning and completing pedorthic devices;
  20. “Pedorthics” means the science and practice of evaluating, measuring, designing, fabricating, assembling, fitting, adjusting or servicing a pedorthic device, under an order from a licensed health care practitioner authorized by law to issue such order for the correction or alleviation of neuromuscular or musculoskeletal dysfunction, disease, injury or deformity;
  21. “Pedorthist” means a person who measures, designs, fabricates, fits or services pedorthic devices and assists in the formulation of the order of pedorthic devices, as ordered by a licensed health care practitioner authorized by law to issue such order for the support or correction of disabilities caused by neuro-musculoskeletal diseases, injuries or deformities;
  22. “Person” means a natural person;
  23. “Prosthesis” means a custom designed, fabricated, fitted or modified device to replace an absent external limb, for the purpose of restoring physiological function or cosmesis. “Prosthesis” does not include artificial eyes, ears or dental appliances, cosmetic devices such as artificial breasts, eyelashes or wigs or other devices that do not have a significant impact on the musculoskeletal functions of the body;
  24. “Prosthetics” means the science and practice of evaluating, measuring, designing, fabricating, assembling, fitting, adjusting or servicing a prosthesis, under an order from a licensed health care practitioner authorized by law to issue such order;
  25. “Prosthetist” means an allied health professional who is specifically trained and educated to provide or manage the provision of a custom designed, fabricated, modified and fitted external limb prosthesis to a prosthetic patient, based on a clinical assessment and a prescription from a health care practitioner authorized to write such prescriptions, to restore physiological function or cosmesis;
  26. “Prosthetist/Orthotist” means a person who practices both disciplines of prosthetics and orthotics and who represents the person to the public by title or by description of services; and
  27. “Resident” means a person who has completed an education program in either orthotics or prosthetics and is continuing such person's clinical education in a residency program approved by the board.

Acts 2005, ch. 380, § 1.

63-3-202. Rules and regulations — Authority of the board.

  1. The board shall adopt rules and regulations, promulgated in compliance with all requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to:
    1. Establish licensure categories and issue licenses for prosthetists, orthotists and pedorthists;
    2. Establish the qualifications, educational courses, curriculum, hours and standards that are prerequisite to issuance of all levels and types of licensure established pursuant to subdivision (a)(1); provided, however, that such qualifications shall include the following:
      1. To qualify for a license to practice orthotics or prosthetics, a person shall:
        1. Possess a baccalaureate degree or semester hours equivalent to four (4) years of study at a four-year college or university;
        2. Complete the amount of formal training, including, but not limited to, any necessary hours of classroom education and clinical practice required by the board;
        3. Complete a clinical residency in the professional area for which a license is sought, in accordance with standards, guidelines, or procedures for residencies inside or outside this state established and approved by the board. The majority of training shall be devoted to services performed under the supervision of a licensed practitioner of orthotics or prosthetics or a person who has obtained certification from the American Board for Certification in Orthotics and Prosthetics, Inc. or the Board for Orthotist/Prosthetist Certification;
        4. Pass all written, practical and oral examinations that are required and approved by the board; and
        5. Be qualified to practice in accordance with commonly accepted standards of orthotic and prosthetic care acceptable to the board;
      2. To qualify for a license to practice pedorthics, a person shall:
        1. Possess a high school diploma or comparable credential approved by the board;
        2. Complete the amount of formal training, including, but not limited to, any necessary hours of classroom education and clinical practice required by the board;
        3. Pass all examinations that are required and approved by the board;
        4. Complete a qualified work experience program or internship in pedorthics, in accordance with standards and procedures established by the board; and
        5. Be qualified to practice in accordance with commonly accepted standards of pedorthic care acceptable to the board; and
      3. A person may be licensed in more than one (1) discipline;
    3. Establish the circumstances or conditions, if any, under which persons shall be entitled to exemption from licensure during training, while waiting to take or receive the results of any required examination or upon meeting specified minimum educational and clinical qualifications;
    4. Select the examination or examinations to be utilized as the board's licensure examination or examinations and the prerequisites, if any, for admission to the examination or examinations. The board is authorized to enter into a contract or agreement with the chosen examination service or services or select an intermediary between the board and the examination service or services to process applicants for the examination or examinations;
    5. Establish any other criteria for issuance of licensure that are reasonably related to the safe and competent performance of prosthetics, orthotics and pedorthics;
    6. Accredit continuing education courses;
      1. Establish the fees to be paid for each of the following:
        1. Application for licensure;
        2. Renewal or reinstatement of licensure;
        3. Late renewal of licensure;
        4. Application for continuing education course accreditation; and
        5. Duplicate or replacement license;
      2. The fees shall be set at a level that is adequate to pay all of the expenses of implementing and administering this part. All deposits and disbursements shall be handled in accordance with § 63-1-137;
    7. Establish the continuing education requirements for license holders, which shall include the frequency of reporting, number of hours, types of courses, approval of courses, methods of proving compliance, penalties for violation and all fees necessary for implementation of the continuing education process;
    8. Regulate the nature, manner, content and extent of advertising by persons licensed under this part;
    9. Delineate the actions relative to therapeutic footwear and medical devices for the foot and ankle that must be performed by licensed health care practitioners; and
    10. Establish a registration process for residents as prescribed in § 63-3-209(2)(B).
  2. The board shall have the authority to:
    1. Conduct disciplinary hearings, in accordance with the Uniform Administrative Procedures Act; and
    2. Issue advisory private letter rulings to any affected person licensed under this part who makes such a request regarding any matters within the board's primary jurisdiction. Such private letter ruling shall affect only the person making such inquiry and shall have no precedential value for any other inquiry or future contested case that might come before the board. Any dispute regarding a private letter ruling may, if the board chooses to do so, be resolved pursuant to the declaratory order provisions of § 4-5-223.

Acts 2005, ch. 380, § 1; 2017, ch. 167, § 2.

Amendments. The 2017 amendment added (a)(11).

Effective Dates. Acts 2017, ch. 167, § 4. July 1, 2017.

63-3-203. Licensing.

  1. Licenses shall be issued and renewed by the board pursuant to the division's biennial issuance and renewal system.
  2. Any person who has been issued a license to practice under this part and who wishes to retire that license shall file with the board an affidavit, on a form to be furnished by the board, stating the date on which the person retired from such practice and such other facts that tend to verify such retirement, as the board deems necessary. Any person who wishes to reenter practice after retiring such person's license must request reinstatement of licensure.
  3. Any license issued by the board shall contain the name of the person to whom it is issued, the address of the person, the date and number of the license and such other information as the board deems necessary. The address contained on the license shall be the address where all correspondence and renewal forms from the board shall be sent. Any person whose address changes shall, within thirty (30) days after the address change, notify the board of the address change. The most recent address contained in the board's records for each license holder shall be the address deemed sufficient for purposes of service of process.
  4. Every person issued a license pursuant to this part shall either keep such license prominently displayed in the office or place in which such person practices or have it stored in a place from which it can be immediately produced upon request of a patient or a representative of the department.
  5. Any person whose license has been lost or destroyed may make application to the board for a replacement. Such application shall be accompanied by an affidavit setting out the facts concerning the loss or destruction of the original license.
  6. Any person whose name is changed by marriage or court order may surrender the person's license and apply to the board for a replacement license.

Acts 2005, ch. 380, § 1.

Cross-References. Licenses, §§ 63-1-10363-1-107.

63-3-204. Powers of the board.

  1. The board shall have the power to:
    1. Deny, restrict or condition a license;
    2. Permanently or temporarily withhold issuance of a license;
    3. Suspend, limit or restrict a previously issued license, for such time and in such manner as the board may determine;
    4. Reprimand, suspend, revoke or take such other disciplinary action in relation to an applicant or license holder as the board, in its discretion, may deem proper; or
    5. Permanently revoke a license.
  2. The grounds upon which the board shall exercise such power include, but are not limited to, circumstances in which the person:
    1. Is guilty of fraud or deceit in the procurement or holding of the license;
    2. Has been convicted of a felony in a court of competent jurisdiction, either within or outside of this state, unless the conviction has been reversed and the holder of the license discharged or acquitted or if the holder has been pardoned with full restoration of civil rights, in which case the license shall be restored;
    3. Is or has been afflicted with any medical problem, disability or addiction that, in the opinion of the board, would impair professional competence;
    4. Has knowingly aided and abetted a person who is not a license holder or is not otherwise authorized pursuant to this chapter to perform the duties of a license holder under this chapter;
    5. Has undertaken or engaged in any practice beyond the scope of duties permitted a license holder under this chapter;
    6. Has impersonated a license holder or former license holder or is under an assumed name performing the duties authorized to be performed only by a licensed person;
    7. Has been found guilty of violations of a code of ethics, which the board shall establish by regulation;
    8. Is or has been found guilty of incompetence or negligence in performance as a license holder;
    9. Acts in a manner unprofessional, dishonorable or unethical or has been found guilty of unprofessional, dishonorable or unethical conduct;
    10. Violates, or attempts to violate, directly or indirectly, or assists or aids in the violation of, or conspires to violate, any provision of this chapter or any lawful order of the board issued pursuant to this chapter or any of the rules or regulations promulgated pursuant to this chapter, or any criminal statute of the state;
    11. Is habitually intoxicated or engages in personal misuse of any drugs or the use of intoxicating liquors, narcotics, controlled substances, controlled substance analogues or other drugs or stimulants in such manner as to adversely affect the person's ability to practice; or
    12. Has received disciplinary action from another state or territory of the United States that has licensed or certified the person to practice in that state for any acts or omissions that 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 section and shall be sufficient grounds upon which to deny, restrict or condition licensure or renewal or to discipline a person licensed in this state.
  3. An action taken under this section shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 1, part 1 of this title.

Acts 2005, ch. 380, § 1; 2012, ch. 848, § 67; 2018, ch. 745, § 23.

Amendments. The 2018 amendment added (c).

Effective Dates. Acts 2018, ch. 745, § 46. July 1, 2018.

Cross-References. Grounds for license denial, suspension or revocation, § 63-6-214.

63-3-205. Application.

  1. On and after January 1, 2008, no person shall practice orthotics, prosthetics or pedorthics in this state, or hold out as being able to practice either profession, or dispense an orthosis, prosthesis or pedorthic device, unless such person is licensed in accordance with the requirements of this part.
  2. Until January 1, 2008, a person certified by the American Board for Certification in Orthotics and Prosthetics, Inc., with the title of Certified Orthotist (CO), Certified Prosthetist (CP) or Certified Orthotist-Prosthetist (CPO), or by the Board for Orthotist/Prosthetist Certification with the title of Board of Orthotic Certification — Orthotist (BOCO) or Board of Certification — Prosthetist (BOCP), or holding similar certifications from other accrediting bodies with equivalent educational requirements and examination standards, may apply for and may be granted orthotic or prosthetic licensure under this part, upon payment of the required fee. After January 1, 2008, any applicant for initial licensure as an orthotist or a prosthetist shall meet the requirements of this part regarding license.
  3. Until January 1, 2008, a person certified as a Certified Pedorthist (CPED) by the Board of Certification in Pedorthics, Inc., or a person certified as a CO, CP or CPO by the American Board for Certification in Orthotics and Prosthetics, Inc., or certified as a BOCO or BOCP by the Board for Orthotist/Prosthetist Certification, or holding similar certifications from other accrediting bodies with equivalent educational requirements and examination standards, may apply for and may be granted pedorthic licensure under this part, upon payment of the required fee. After that date, any applicant for initial licensure as a pedorthist shall meet the requirements of this part regarding licensure.
  4. Notwithstanding any other provision of this part to the contrary, a person who has practiced full time for a minimum of the past five (5) years in a prosthetic/orthotic facility as an orthotist or prosthetist or in a pedorthic facility as a pedorthist may file an application with the board before January 1, 2007, in order to continue to practice orthotics, prosthetics or pedorthics and may be issued a license to practice orthotics, prosthetics or pedorthics under this part without examination, upon receipt by the division of payment of the licensing fee required and after the board has completed an investigation of the applicant's work history. The investigation may include, but is not limited to, completion by the applicant of a questionnaire regarding the applicant's work history and scope of practice.

Acts 2005, ch. 380, § 1.

63-3-206. Order from licensed health care provider required to provide care or services.

A licensed orthotist, prosthetist or pedorthist may provide care or services only if the care or services are provided pursuant to an order from a licensed health care practitioner authorized to issue such an order.

Acts 2005, ch. 380, § 1.

63-3-207. Scope of practice.

  1. The scope of practice of a licensed orthotist, prosthetist or pedorthist shall not include the right to diagnose a medical problem or condition or the right to give medical advice as to the nature, cause or treatment for the problem or condition for which the orthotic, prosthetic or pedorthic device is being dispensed; however, the scope of practice of a licensed orthotist, prosthetist or pedorthist does include the right to provide information or demonstration regarding the proper use and care of the device and to make adjustments to the device as needed.
  2. No person shall dispense or sell an over-the-counter or off-the-shelf device based upon an image of the customer's limb captured by the person through a mold, cast, scanning device, digital appliance, or pressure sensitive device, unless the customer has first presented to that person a written prescription for that device from a health care practitioner authorized by law to write such a prescription.

Acts 2005, ch. 380, § 1.

Attorney General Opinions. Sale of diabetic shoes.  OAG 13-105, 2013 Tenn. AG LEXIS 109 (12/19/13).

63-3-208. Interpretation of part.

  1. Nothing in this part or in the rules adopted by the board pursuant to this part shall be interpreted to limit or restrict a health care practitioner licensed under this title from engaging in the full scope of practice of such person's profession, training or services. Nothing in this part or in the rules adopted by the board pursuant to this part shall be interpreted or permitted to limit or restrict individuals acting under the supervision and control of a pharmacist or pharmacy licensed under this title or home medical equipment provider licensed under title 68 from measuring, fitting or adjusting any non-custom-fabricated and fitted device, including, but not limited to, over-the-counter or off-the-shelf devices, so long as such individual does not create a cast, mold or scan of a part of the human body for the purpose of constructing a medical device to treat a patient's medical condition and so long as such individual meets one (1) of the following criteria for such device:
    1. Documented training from a manufacturer or training from a licensed or certified orthotist, prosthetist or pedorthist;
    2. Certification or registration as a fitter of orthotic, prosthetic or pedorthic devices from a nationally recognized board or association such as the Board for Orthotist/Prosthetist Certification (BOC), the Board of Certification for Pedorthists, the National Community Pharmacists Association (NCPA) or the American Board for Certification in Orthotics and Prosthetics (ABC); or
    3. Direct supervision by a trained and experienced, or certified or registered, fitter of orthotic, prosthetic or pedorthic devices.
  2. Nothing in this part or in the rules adopted by the board pursuant to this part shall be interpreted or permitted to limit or restrict individuals acting under the supervision and control of a pharmacist or pharmacy licensed under this title or home medical equipment provider licensed under title 68 from measuring, fitting or adjusting any non-custom-fabricated and fitted pedorthic devices, including, but not limited to, diabetic shoes, so long as such individual meets the criteria of either subdivision (a)(2) or (a)(3) and so long as the individual does not create a cast, mold or scan of a part of the human body for the purpose of constructing a medical device to treat a patient's medical problem.

Acts 2005, ch. 380, § 1.

Attorney General Opinions. Sale of diabetic shoes.  OAG 13-105, 2013 Tenn. AG LEXIS 109 (12/19/13).

63-3-209. Construction of part.

Nothing in this part shall be construed to restrict:

  1. The practice of orthotics, prosthetics or pedorthics by a person who is employed by the federal government or any bureau, division or agency of the federal government while in the discharge of the employee's official duties;
  2. The practice of orthotics, prosthetics or pedorthics by:
    1. A student enrolled in a school of orthotics, prosthetics or pedorthics;
    2. A resident continuing such resident's clinical education in a residency accredited by the National Commission on Orthotic and Prosthetic Education; provided, that such person has first registered as a resident with the board; or
    3. A student in a qualified work experience program or internship in pedorthics; or
  3. The measuring, fitting or adjusting of an orthotic device by an employee or authorized representative of an orthosis manufacturer registered with the federal food and drug administration, when such employee or representative is supervised by a licensed health care professional authorized by law to prescribe, measure or fit such device, and the measuring, fitting or adjusting of such device occurs in the office of such licensed health care professional or in a health care facility.

Acts 2005, ch. 380, § 1; 2017, ch. 167, § 1.

Amendments. The 2017 amendment added the proviso at the end of (2)(B).

Effective Dates. Acts 2017, ch. 167, § 4. July 1, 2017.

63-3-210. Violation of part.

  1. Any person who practices in this state without having first complied with this part commits a Class C misdemeanor; provided, however, that, for a period of one (1) year after January 1, 2006, an offense under this section shall only result in a warning and such person shall have thirty (30) days to comply with this part.
  2. The board of registration in podiatry shall inform persons to be regulated by this part of the regulations to be imposed by this part.

Acts 2005, ch. 380, § 1.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

63-3-211. Injunction — Jurisdiction.

  1. The board is authorized to petition any circuit or chancery court having jurisdiction over any person who is practicing without a license, or to whom a license has been denied or whose license has been suspended or revoked by action of the board to enjoin such person from continuing to practice within this state.
  2. Jurisdiction is conferred upon the circuit and chancery courts of this state to hear and determine all such causes and to exercise full and complete jurisdiction in such injunctive proceedings.

Acts 2005, ch. 380, § 1.

Cross-References. Enjoining violations, § 63-1-121.

63-3-212. Screening panels in investigative and disciplinary process.

  1. The board may utilize one (1) or more screening panels in its investigative and disciplinary process, to assure that complaints filed and investigations conducted are meritorious and to act as a mechanism for resolution of complaints or diversion to professional peer review organizations or impaired professionals' associations or foundations of those cases that the board, through established guidelines, deems appropriate.
  2. The screening panel has the authority to administer oaths to witnesses.
  3. Members of a screening panel may be drawn from the membership of the board or may be appointed by the board. Nonboard members shall meet the requirements of membership on the board and may include a consumer member. A board member serving on a panel shall not participate in a contested case involving any matter heard by the panel.

Acts 2005, ch. 380, § 1.

Cross-References. Screening panels, § 63-1-138.

63-3-213. Appointments to the board.

  1. To assist in the implementation and administration of this part, the governor shall initially appoint to the board one (1) person who is eligible for licensure as an orthotist, or prosthetist or pedorthist.
  2. That person's term of office on the board shall be three (3) years. Upon expiration of that person's term, the governor shall appoint a person licensed under this part to fill this position on the board.
  3. A person may serve more than one (1) term in this position on the board.
  4. The governor may remove this member of the board from office for neglect of duties, malfeasance in office, incompetence or professional misconduct.
  5. The governor may fill a vacancy in this position upon the member's resignation or death.
  6. In making appointments to this position on the board, the governor shall consider persons recommended by the professional organization of orthotists, prosthetists and pedorthists in Tennessee.
  7. The person filling this position on the board shall receive the same per diem and reimbursement for travel and other necessary expenses that is received by other members of the board.
  8. The person filling this position shall have the right to vote on all matters considered by the board.

Acts 2005, ch. 380, § 1.

63-3-214. Use of non-licensed persons.

A licensed orthotist or prosthetist may utilize one (1) or more non-licensed persons to assist in:

  1. The performance of minor repairs on devices which have been previously dispensed to patients; and
  2. The performance of other tasks approved by the board of podiatric medical examiners.

Acts 2017, ch. 167, § 3.

Effective Dates. Acts 2017, ch. 167, § 4. July 1, 2017.

Chapter 4
Chiropractors

63-4-101. Practice of chiropractic — Education and clinical training — Scope of practice.

    1. As used in this chapter, unless the context otherwise requires:
      1. “Differential diagnosis” means the examination of body systems and structures of a patient to determine the source, nature, and extent of a disease or other physical condition for the purpose of establishing an appropriate plan of care for the patient, which may include referral to another provider for care that is outside the scope of practice of a chiropractic physician;
      2. “Diagnosis” means:
        1. The differential diagnosis of human ailments through examination and evaluation of patients and through diagnostic procedures necessary to clinically correlate a physical examination to a diagnostic impression;
        2. The ordering of X-rays, advanced diagnostic imaging, and other diagnostic procedures;
        3. The performance of X-rays and other non-invasive diagnostic procedures, as well as minimally invasive procedures for which the chiropractic physician has received training by an institution accredited by the Council on Chiropractic Education or its successor and which have been approved by the board of chiropractic examiners after consultation with the board of medical examiners; and
        4. The collection of blood, urine, saliva, and hair for analysis; provided, however, venipuncture shall only be done by a phlebotomist or other person who is properly trained to draw blood;
      3. “Practice of chiropractic” means the diagnosis and treatment of patients, as defined in subdivisions (a)(1)(B) and (D); and
      4. “Treatment” means:
        1. The treatment of neuromuscular, musculoskeletal, and related conditions through the use of chiropractic adjustment and manipulation; physical agent modalities; manual, rehabilitative, and other therapeutic care; and mechanical, chemical, electrical, and thermal methods;
        2. The use of acupuncture by a chiropractic physician who has completed two hundred fifty (250) hours of an accredited acupuncture course and has passed the National Board of Chiropractic Examiners Acupuncture Exam;
        3. The location and removal of interference with nerve transmission and nerve function;
        4. The making of appropriate referrals to other healthcare professionals for conditions that are outside the scope of practice of a chiropractic physician;
        5. The ordering of durable medical equipment for patients who need such equipment to assist in the restoration of their health under the plan of care for treatment of their neuromuscular, musculoskeletal, and related conditions; and
        6. The provision of supportive care with due regard for nutrition, hygiene, sanitation, and rehabilitation designed to assist in the restoration and maintenance of a patient's health.
    2. Nothing in this chapter authorizes a chiropractic physician to engage in the practice of medicine and surgery or osteopathy, as defined in chapters 6 and 9 of this title, or to prescribe legend drugs or controlled substances.
  1. As used in this chapter, “chiropractic physician” means a person who is a graduate of a chiropractic college accredited by the Council on Chiropractic Education or its successor, or is a graduate of an international chiropractic college approved by the board of chiropractic examiners, and who has received a license issued by the board of chiropractic examiners.
    1. No person licensed under this title may perform a spinal manipulation or spinal adjustment without first having the legal authority to differentially diagnose and having received a minimum of four hundred (400) hours of classroom instruction in spinal manipulation or spinal adjustment and a minimum of eight hundred (800) hours of supervised clinical training at a facility where spinal manipulation or spinal adjustment is a primary method of treatment. “Spinal manipulation” and “spinal adjustment” are interchangeable terms that identify a method of skillful and beneficial treatment where a person uses direct thrust to move a joint of the patient's spine beyond its normal range of motion, but without exceeding the limits of anatomical integrity. A violation of this section is an unlawful practice of chiropractic and is grounds for the offending health care provider's licensing board to suspend, revoke or refuse to renew such provider's license or take other disciplinary action allowed by law.
    2. Nothing in this subsection (c) shall in any way apply to the scope of practice of:
      1. An osteopathic physician licensed under chapter 9 of this title; or
      2. Any person who practices medicine or surgery who is licensed under chapter 6 of this title.

Acts 1923, ch. 9, § 5; Shan. Supp., § 3654a120; Code 1932, § 7013; Acts 1941, ch. 29, § 2; C. Supp. 1950, § 7013; Acts 1980, ch. 673, § 1; T.C.A. (orig. ed.), § 63-401; Acts 1999, ch. 323, § 1; 2003, ch. 166, § 1; 2006, ch. 775, § 1; 2017, ch. 455, §§ 1, 2.

Amendments. The 2017 amendment rewrote (a) and (b) which read: “(a) The term ‘chiropractic’ where used in this chapter is defined as the science and art of locating and removing interference with nerve transmission and nerve function. A chiropractic physician diagnoses and treats neuromuscular and musculoskeletal conditions through physical agent modalities and manipulative therapies. The adjustment, manipulation or treatment shall be directed toward restoring and maintaining the normal neuromuscular and musculoskeletal function and health of the patient. A chiropractic physician will also make appropriate health referrals for conditions that may not be treated by physical agent modalities and manipulative therapies. Patient care shall be conducted with due regard for nutrition, environment, hygiene, sanitation and rehabilitation designed to assist in the restoration and maintenance of the patient's health. Nothing in this chapter shall be construed to authorize the chiropractic physician to practice any branch of medicine osteopathy, as defined in chapters 6 and 9 of this title, or surgery, including venipuncture or the prescribing of medication, acupuncture being the exception. “(b) As used in this chapter, ‘chiropractic physician’ means a graduate of an accredited chiropractic college authorized to confer upon graduates the degree of doctor of chiropractic (D.C.), who is duly licensed in this state.”

Effective Dates. Acts 2017, ch. 455, § 8. July 1, 2017.

Cross-References. Assignment of insurance benefits to health care provider, § 56-7-120.

Duties of chiropractors regarding known or suspected child sexual abuse, §§ 37-1-403, 37-1-605.

Liability of professional societies, title 62, ch. 50, part 1.

Occupation tax on chiropractors, title 67, ch. 4, part 17.

Reimbursable services within scope of practice of chiropractor, discrimination prohibited, § 56-7-2404.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Physicians and Surgeons, § 6.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777.

Attorney General Opinions. Doctors of chiropractic may not order and receive the results of diagnostic testing from licensed medical laboratories, including urinalysis, arthritis panel, urine count, glucose tolerance test, male-female endocrine profile, standard blood profile (CBC with differential), and pregnancy testing, OAG 00-131, 200 Tenn. AG LEXIS 132 (8/15/00).

Chiropractors may not practice a treatment modality that involves the insertion of needles with the intent bring about the same result as the needle insertion techniques applied in the practice of acupuncture, without first obtaining a certification to practice acupuncture, OAG 05-020, 2005 Tenn. AG LEXIS 20 (3/08/05).

A licensed physical therapist may not perform or hold himself or herself out as performing “spinal manipulation,” as that term is used in former T.C.A. § 63-4-101(c)(1) (now T.C.A. § 63-4-101(b)(1)), without first having fulfilled the requirements of that section, OAG 07-055 (4/23/07).

NOTES TO DECISIONS

1. Diagnosis.

The field of chiropractic is limited to the treatment of those illnesses and diseases of the human body which doctors of chiropractic reasonably believe can be aided by manual manipulation of the spine. Ison v. McFall, 55 Tenn. App. 326, 400 S.W.2d 243, 1964 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1964), superseded by statute as stated in, Johnson v. Lawrence, 720 S.W.2d 50, 1986 Tenn. App. LEXIS 2842, 77 A.L.R.4th 251 (Tenn. Ct. App. 1986); Spunt v. Fowinkle, 572 S.W.2d 259, 1978 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1978).

There is nothing in this section which would prohibit a chiropractor from treating a patient afflicted with paralysis so long as he in good faith believes that a manipulation of the spine will benefit the patient. Ison v. McFall, 55 Tenn. App. 326, 400 S.W.2d 243, 1964 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1964), superseded by statute as stated in, Johnson v. Lawrence, 720 S.W.2d 50, 1986 Tenn. App. LEXIS 2842, 77 A.L.R.4th 251 (Tenn. Ct. App. 1986).

2. Expert Witness.

Chiropractor was competent to testify as to nerve interference in patient's spine the subluxations of his vertebrae and the abnormal curvature of the spine, and to express an opinion as to the probable causes and effects of these injuries but he was not competent to testify as an expert as to occupational diseases or as to whether patient had silicosis. Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134, 1963 Tenn. LEXIS 378 (1963).

Chiropractor not competent to testify in workers' compensation proceeding as to medical matters outside the scope of his profession. Tom Still Transfer Co. v. Way, 482 S.W.2d 775, 1972 Tenn. LEXIS 358 (Tenn. 1972).

The fact that a chiropractor admitted that treatment of a fractured collar bone was beyond the scope of his profession did not affect the admissibility or relevance of his testimony with respect to the condition of employee's spine and the cause and effect of such condition. Smith v. Hale, 528 S.W.2d 543, 1975 Tenn. LEXIS 626 (Tenn. 1975).

3. Practice.

Any licensed chiropractor who, in the practice of his profession, engages in activities beyond the scope of those authorized in § 63-1-105 may be found to have invaded the field of medicine as defined in § 63-6-204 and may be disciplined by the state licensing board for the healing arts pursuant to § 63-1-123. Spunt v. Fowinkle, 572 S.W.2d 259, 1978 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1978).

There was material and substantial evidence to support the findings of the state licensing board for the healing arts that a chiropractor exceeded the scope of his license and invaded the field of medicine by making pap smears and by drawing blood for the purpose of diagnosing various human diseases and ailments which were unrelated to chiropractic practice. Spunt v. Fowinkle, 572 S.W.2d 259, 1978 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1978).

4. Sufficiency of Evidence.

There was substantial evidence in a workers' compensation case to support chancellor's finding of 50% permanent partial disability where a chiropractor testified his opinion to be that there was between 55% and 60% disability to employee's spine and where employee and his parents testified as to the employee's inability to do any heavy work. Smith v. Hale, 528 S.W.2d 543, 1975 Tenn. LEXIS 626 (Tenn. 1975).

63-4-102. Board — Members and officers — Terms of appointment — Quorum — Administrative support.

  1. There shall be a board of chiropractic examiners, referred to as “board” in this chapter, consisting of five (5) chiropractic physicians, residents in Tennessee who have been actively engaged in the practice of their profession in Tennessee for a period of at least five (5) years, and two (2) consumer members who are not affiliated with the practice of chiropractic. The members of the board shall be appointed by the governor and shall hold office for a term of five (5) years commencing on May 1 and expiring on April 30, five (5) years thereafter.
  2. All vacancies occurring on the board by reason of death or resignation shall be filled by the governor for the unexpired term.
  3. In making appointments to the board, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority.
  4. In order to stagger the terms of office, for the year 2000 the governor shall appoint the board members for transition terms in the following manner:
    1. One (1) chiropractic physician and one (1) consumer member for one (1) year with the term to expire on April 30, 2001;
    2. One (1) chiropractic physician for a two-year term to expire on April 30, 2002;
    3. One (1) chiropractic physician for a three-year term to expire on April 30, 2003;
    4. One (1) chiropractic physician and one (1) consumer member for a four-year term to expire April 30, 2004; and
    5. One (1) chiropractic physician for a five-year term to expire April 30, 2005.
  5. Any person appointed shall be eligible for successive appointments, in the discretion of the governor, and all members shall hold office until the appointment of their successors.
  6. No chiropractor shall be eligible for appointment unless such chiropractor is actively engaged in the practice of the profession of chiropractic within this state.
  7. Further, no persons shall be eligible for appointment on the board who at the time are actively engaged in the practice, or holding themselves out as practitioners, of any other branch of the healing arts.
  8. The governor has the discretion to seek recommendations and nominations from the Tennessee Chiropractic Association in making appointments to the board.
  9. The board is authorized to annually elect from among its members a president, vice president and secretary and to create such officers it deems necessary for its efficient operations. Four (4) members of the board shall constitute a quorum, and a majority of those present shall be necessary to pass or reject any official business.
  10. The board shall be provided administrative support by the division of health related boards, referred to as the “division” in this chapter.

Acts 1923, ch. 9, § 1; Shan. Supp., § 3654a116; mod. Code 1932, § 7009; Acts 1939, ch. 116, § 1; C. Supp. 1950, § 7009; Acts 1976, ch. 781, § 1; T.C.A. (orig. ed.), § 63-402; Acts 1984, ch. 937, § 15; 1988, ch. 1013, § 41; 1992, ch. 817, § 3; 1993, ch. 463, § 1; 2000, ch. 618, § 1; 2017, ch. 455, § 3.

Compiler's Notes. The board of chiropractic examiners, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Amendments. The 2017 amendment added “within this state” at the end of (f).

Effective Dates. Acts 2017, ch. 455, § 8. July 1, 2017.

Cross-References. Division of health related boards, title 63, ch. 1.

State examining boards, general provisions, title 4, ch. 19.

63-4-103. Powers and duties of board.

It is the duty of the board to:

  1. Examine applicants and have licenses issued to practice chiropractic to all applicants who have successfully passed the examination approved by the board or whose applications for license by reciprocity have been acted upon favorably by the board;
  2. Conduct hearings to revoke or suspend any license or certificate under the authority of this or any previous laws authorizing the holder thereof to practice chiropractic for violations by the licensee of any of the provisions of this chapter;
  3. Sponsor, conduct or approve such educational programs as are necessary to carry out and make effective this chapter; and
  4. Issue advisory private letter rulings to any affected licensee who makes such a request regarding any matters within the board's primary jurisdiction. Such private letter ruling shall only affect the licensee making such inquiry and shall have no precedential value for any other inquiry or future contested case to come before the board. Any dispute regarding a private letter ruling may, if the board chooses to do so, be resolved pursuant to the declaratory order provisions of § 4-5-223.

Acts 1923, ch. 9, § 1; Shan. Supp., § 3654a116; mod. Code 1932, § 7009; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 7009; Acts 1953, ch. 113, § 31; 1976, ch. 781, § 3; T.C.A. (orig. ed.), § 63-404; Acts 1984, ch. 937, § 16; 1998, ch. 973, § 1; 2017, ch. 455, § 4.

Amendments. The 2017 amendment substituted “approved” for “given” following “examination” in (1).

Effective Dates. Acts 2017, ch. 455, § 8. July 1, 2017.

63-4-104. Meetings of board.

The board shall hold one (1) regular meeting in each year and such additional meetings at such times and places as it may determine.

Acts 1923, ch. 9, § 2; Shan. Supp., § 3654a117; Code 1932, § 7010; Acts 1939, ch. 116, § 2; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 7010; impl. am. Acts 1953, ch. 113, § 36; Acts 1976, ch. 781, § 4; T.C.A. (orig. ed.), § 63-405.

63-4-105. Disposition of fees — Operating expenses — Compensation.

  1. All fees and moneys from whatever source coming into the hands of the board shall be paid by the board to the state treasurer and become a part of the general fund.
  2. The commissioner of finance and administration shall make allotments out of the general fund for the proper expenditures of the board, and no expenditure may be made by the board until the allotment for the expenditure has been made by the commissioner. The allotments for the operation of the board shall be disbursed under the general budgetary laws of the state.
  3. Each member of the board shall receive one hundred dollars ($100) per diem when actually engaged in the discharge of that member's official duties and, in addition, be reimbursed for all travel and other necessary expenses. The secretary of the board shall, in lieu of the per diem provided by this section, receive a salary not to exceed one hundred dollars ($100) per month as set annually by the board. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1923, ch. 9, § 15; impl. am. Acts 1925, ch. 115, § 32; Shan. Supp., § 3654a129; Code 1932, § 7023; Acts 1939, ch. 116, § 8; C. Supp. 1950, § 7023; Acts 1953, ch. 113, § 36; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; 1976, ch. 781, § 5; 1976, ch. 806, § 1(27); T.C.A. (orig. ed.), § 63-406; Acts 2017, ch. 455, § 5.

Amendments. The 2017 amendment substituted “one hundred dollars ($100)” for “fifty dollars ($50.00)” in the first sentence of (c).

Effective Dates. Acts 2017, ch. 455, § 8. July 1, 2017.

63-4-106. Rules and regulations.

The board is authorized to adopt such rules and regulations as are necessary to carry out and enforce this chapter and that are consistent with this chapter. Rules and regulations of the board shall be subject to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1923, ch. 9, § 16; Shan. Supp., § 3654a130; Code 1932, § 7024; Acts 1976, ch. 781, §§ 6, 7; T.C.A. (orig. ed.), § 63-407.

63-4-107. License requirement.

It is unlawful for any person to practice chiropractic within this state without having procured a license.

Acts 1923, ch. 9, § 12; Shan. Supp., § 3654a126; Code 1932, § 7020; mod. C. Supp. 1950, § 7020; T.C.A. (orig. ed.), § 63-408.

Cross-References. Exemption from licensing requirements for practice of medicine, § 63-6-204.

Licensure, §§ 63-1-10363-1-107.

63-4-108. Eligibility for licensure.

Any person of good moral character is eligible for licensure, if that person:

  1. Is a graduate of a chiropractic college having status with the commission on accreditation of the Council on Chiropractic Education, or its successor, or graduated from an international chiropractic college approved by the board;
  2. Has attended a chiropractic college for four (4) school years of not less than nine (9) months each; and
  3. Submits to the board proof of additional parachiropractic education as follows:
    1. For applicants matriculating in a chiropractic college prior to year 2000, the applicant must provide a transcript of grades showing a minimum of two (2) full academic years of college or university work of at least sixty (60) semester hours or its equivalent from an accredited institution; or
    2. For applicants matriculating in a chiropractic college in year 2000 and beyond, proof that a bachelor's level education or its equivalent has been obtained from an accredited college or university.

Acts 1923, ch. 9, § 4; Shan. Supp., § 3654a119; Code 1932, § 7012; Acts 1939, ch. 116, § 3; 1941, ch. 29, § 1; C. Supp. 1950, § 7012; Acts 1975, ch. 229, § 1; T.C.A. (orig. ed.), § 63-409; Acts 2000, ch. 618, § 2.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

63-4-109. Application for licensure.

  1. Application for licensure shall be made to the board in writing or via online application.
  2. The application shall be accompanied by the applicant's photograph and shall state the name, age, sex and place of residence of the applicant, the name and location of the school or college from which the applicant was graduated, the length of time devoted to the study of chiropractics and the date of graduation.
  3. All applications shall be signed and sworn to by the applicant.

Acts 1923, ch. 9, § 6; Shan. Supp., § 3654a120 ½; Code 1932, § 7014; Acts 1939, ch. 116, § 4; C. Supp. 1950, § 7014; Acts 1953, ch. 113, § 32; 1976, ch. 781, §§ 7, 8; T.C.A. (orig. ed.), § 63-411; Acts 1982, ch. 887, §§ 1, 2; 1983, ch. 205, § 1; 1984, ch. 937, § 17; 1989, ch. 523, § 2; 2000, ch. 618, § 3; 2014, ch. 949, § 5.

63-4-110. Examination.

The examination of applicants for a license to practice chiropractic will consist of the national board examination as directed by the board. Each applicant must successfully pass all examinations before receiving a license to practice.

Acts 1923, ch. 9, § 7; Shan. Supp., § 3654a121; Code 1932, § 7015; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 7015; Acts 1976, ch. 781, § 8; T.C.A. (orig. ed.), § 63-412; Acts 1982, ch. 887, §§ 4, 5; 1983, ch. 205, § 2; 1984, ch. 937, § 18; 1989, ch. 523, §§ 3, 4; 2000, ch. 618, § 4.

Cross-References. Temporary license pending permanent licensure, § 63-4-120.

63-4-111. Reciprocity.

Applicants possessing a valid unrestricted license to practice chiropractic in another state or other regulated jurisdiction for a period of two (2) full years are not required to be examined pursuant to § 63-4-110 and may obtain a license by fulfilling the following:

  1. Providing documentation from the state or jurisdiction of prior practice attesting to the length of time in practice, together with any disciplinary action taken against the licensee while in practice;
  2. Passing the Special Purposes Examination for Chiropractors (SPEC) by the national board or its successor; and
  3. Fulfilling all other requirements of this chapter.

Acts 1923, ch. 9, § 11; Shan. Supp., § 3654a125; Code 1932, § 7019; Acts 1939, ch. 116, § 5; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 7019; Acts 1975, ch. 246, § 1; 1976, ch. 781, § 9; T.C.A. (orig. ed.), § 63-413; Acts 1983, ch. 205, § 3; 2000, ch. 618, § 5.

63-4-112. Registration and renewal — Continuing education — Reinstatement — Retirement.

  1. Each licensed practitioner of chiropractic shall register the practitioner's license and renew the practitioner's certificate of registration as provided in §§ 63-1-107 and 63-1-108.
  2. In addition, every licensed chiropractor shall apply to the board for a renewal of the licensed chiropractor's certificate of fitness and pay a renewal fee as set annually by the board. Each application shall be made on a form to be furnished by the board.
    1. The board shall renew such licensee's certificate of fitness upon application made in due form and upon payment of all required fees.
      1. When requested, licensees shall provide the board satisfactory proof of the licensee's attendance at a chiropractic education program or programs conducted by either the American Chiropractic Association, the International Chiropractors Association, the Tennessee Chiropractic Association, or any other educational program approved or conducted by the board which consists of the minimum number of hours established hereunder for the period beginning the preceding January 1. Prior approval of such a course may be obtained by submitting the following information to the board's administrative office at least thirty (30) days prior to the scheduled date of the course:
        1. A course description or outline;
        2. Names of all lecturers;
        3. Brief resume of all lecturers;
        4. Number of hours of educational credit requested;
        5. Date of course;
        6. Copies of materials to be utilized in the course; and
        7. How verification of attendance is to be documented.
      2. Each chiropractic physician must retain independent documentation of continuing education hours attained for a period of four (4) years from the end of the calendar year in which the training is received. Such proof must be produced for inspection and verification, if requested in writing by the board during its verification process.
    2. The minimum number of hours of required continuing education shall be at least twelve (12) hours in any calendar year.
    3. The board may, in its sole discretion, waive the annual education requirement in cases of retirement, certified illness, disability or other undue hardships.
    1. When any such licensee fails to renew the licensee's certificate of fitness and pay the annual renewal fee within sixty (60) days after renewal becomes due as provided in this section and/or fails to meet the annual education requirements of this section, the license of such person shall be automatically revoked at the expiration of sixty (60) days after the renewal was required, without further notice or hearing.
    2. Any person whose license is automatically revoked as provided in this subsection (d) may make application in writing to the board for the reinstatement of such license, and, upon good cause being shown, the board, in its discretion, may reinstate such license upon the payment of all past due fees and the payment of fifty dollars ($50.00) and upon further conditions as the board may require.
  3. Any person licensed to practice by this chapter who has retired or may hereafter retire from such practice in this state shall not be made to register as required by this chapter if such person files with this board an affidavit on a form to be furnished by the board, which affidavit shall state the date on which such person retired from such practice and such other facts as shall tend to verify such retirement as the board shall deem necessary. If such person thereafter desires to reengage in such practice in this state, such person shall apply for reinstatement with the board on a form provided by the board, provide proof of continuing education as established by the board and shall meet other requirements as may be set by the board.

Acts 1923, ch. 9, § 12; Shan. Supp., § 3654a126; Code 1932, § 7020; impl. am. Acts 1947, ch. 9, §§ 5, 6; C. Supp. 1950, § 7020; Acts 1953, ch. 113, § 34; modified; Acts 1963, ch. 116, § 1; 1975, ch. 335, § 1; 1976, ch. 406, § 3; T.C.A. (orig. ed.), § 63-414; Acts 1986, ch. 675, §§ 1, 2, 4, 18; 1989, ch. 360, §§ 18, 19; 1989, ch. 523, § 5; 1993, ch. 215, §§ 1-3; 1996, ch. 940, § 1; 2000, ch. 618, § 6; 2005, ch. 81, § 1; 2017, ch. 455, § 6.

Amendments. The 2017 amendment deleted “the Tennessee Chiropractic Society” preceding “or any other” in the first sentence of the introductory paragraph of (c)(2)(A).

Effective Dates. Acts 2017, ch. 455, § 8. July 1, 2017.

Cross-References. Retirement, § 63-1-111.

Attorney General Opinions. Constitutionality, OAG 94-010, 1994 Tenn. AG LEXIS 6 (2/2/94).

Constitutionality, OAG 95-006, 1995 Tenn. AG LEXIS 7 (2/8/95).

63-4-113. Applicability of health laws — Birth certificates prohibited.

  1. Chiropractic practitioners shall observe and be subject to all state and municipal regulations relating to the control of contagious and infectious diseases and any and all matters pertaining to public health, reporting to proper health officers the same as other practitioners.
  2. Nothing in this chapter shall permit any chiropractor to make or execute a birth certificate.

Acts 1923, ch. 9, § 17; Shan. Supp., § 3654a131; Code 1932, § 7025; T.C.A. (orig. ed.), § 63-415.

63-4-114. Denial, suspension or revocation of license or certificate.

  1. The board has the duty and authority to suspend for a specified time, within the discretion of the board, or to revoke any license to practice chiropractic, or to otherwise discipline any licensee or refuse to grant any certificate of fitness, whenever the licensee or applicant is found guilty of any of the following acts or offenses:
    1. Fraud in procuring a license or certificate;
    2. Conviction of a felony for violations of any law of the state or of the United States;
    3. Habitual intoxication or personal misuse of any drugs or the use of intoxicating liquors, narcotics, controlled substances, controlled substance analogues or other drugs or stimulants in such manner as to adversely affect the person's ability to practice chiropractic;
    4. Immoral, unethical, unprofessional or dishonorable conduct;
      1. In-person solicitation, telemarketing, or telephonic solicitation by licensees, employees of licensees, agents of licensees, or independent contractors of licensees to victims of an accident or disaster, unless it is a victim with whom a licensee has a family or prior professional relationship, shall be considered unethical if carried out within thirty (30) days of the accident or disaster;
      2. Telemarketing transcripts shall be maintained for a period of two (2) years following their utilization;
      3. A log of contacts shall be maintained for a period of two (2) years following a telemarketing encounter; and
      4. This subdivision (5) shall not prohibit solicitation by targeted direct mail advertising or other forms of written, radio, or television advertising; provided, that the advertising does not involve coercion, duress, or harassment and is not false, deceptive, or misleading;
    5. Division of fees or agreeing to split or divide fees received for professional services with any person for bringing or referring a patient;
    6. Professional connection or association with any person, firm or corporation in any manner in an effort to avoid and circumvent this chapter or lending one's name to another for the illegal practice of chiropractic by such person;
    7. Rebating or offering to rebate to an insured any payment by the insured's third-party payor to the licensee for services or treatments rendered under the insured's policy;
    8. Submitting to any third-party payor a claim for a service or treatment at an inflated fee or charge or a greater fee or charge than the usual fee the licensee charges for that service or treatment when the service or treatment is rendered without third-party reimbursement;
    9. Submitting to any third-party payor a claim for a service or treatment at a fee or charge in an amount greater than that advertised for such service or treatment at the time of the rendering of the service or treatment that is the subject matter of the claim;
    10. Knowingly or purposefully incorrectly reporting services rendered, reporting incorrect treatment dates or reporting charges for services not rendered for the purpose of obtaining payment from a third-party payor;
    11. Any other unprofessional or unethical conduct that may be specified by the board from time to time by means of rules and regulations duly published and promulgated by the board or the violation of any provision of this chapter;
    12. The advertising of chiropractic business 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;
    13. Invasion of a field of practice in which the licensee is not licensed to practice or is not within the limits of the licensee's respective callings as determined by the board;
    14. Gross health care liability or a pattern of continued or repeated health care liability, ignorance, negligence or incompetence in the course of chiropractic practice; and
    15. Making false, fraudulent, misleading, extravagant or grossly improbable claims or statements as to the efficacy or value of the science or practice of chiropractic.
  2. An action taken under this section shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 1, part 1 of this title.

Acts 1923, ch. 9, § 13; Shan. Supp., § 3654a127; Code 1932, § 7021; Acts 1939, ch. 116, § 7; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 7021; Acts 1976, ch. 781, § 10; T.C.A. (orig. ed.), § 63-416; Acts 1982, ch. 887, § 6; 1984, ch. 545, § 1; 1988, ch. 747, § 1; 1998, ch. 973, § 2; 2012, ch. 798, § 35; 2012, ch. 848, § 68; 2015, ch. 121, § 1; 2018, ch. 745, § 24.

Compiler's Notes. Acts 1988, ch. 747, § 2 provided that, by the amendment by that act, no action of any kind may be undertaken against any licensed chiropractor in the state because of any alleged contravention of former subdivisions, concerning advertising reduced fees and abrogation of patients' obligations for payment, which may have taken place during their existence.

Amendments. The 2018 amendment added (b).

Effective Dates. Acts 2018, ch. 745, § 46. July 1, 2018.

Cross-References. Grounds for license denial, suspension or revocation, § 63-6-214.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

NOTES TO DECISIONS

1. Deception and Fraud in Practice of Chiropractic.

A chiropractor who purports to engage in the practice of medicine and even of surgery and exacts a fee for such “services” has been guilty of deception and fraud in the practice of chiropractic. Janeway v. State Board of Chiropractic Examiners, 33 Tenn. App. 280, 231 S.W.2d 584, 1950 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1950)

Where practitioner used his license in another field, and the title of “doctor,” such conduct amounted to a fraud and deception in the practice of the art for which a license had been issued. Janeway v. State Board of Chiropractic Examiners, 33 Tenn. App. 280, 231 S.W.2d 584, 1950 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1950)

2. Power of Board.

The legislature, after laying down specific grounds for the guidance of the board of chiropractic examiners, intended to confer upon it also the power to revoke the license of a chiropractor whose activities were found to be unprofessional or subversive to the public interest or welfare. Janeway v. State Board of Chiropractic Examiners, 33 Tenn. App. 280, 231 S.W.2d 584, 1950 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1950)

3. Solicitation.

The solicitation clause of T.C.A. § 63-4-114(a)(5) is unconstitutionally broad as it clearly proscribes both personal and telephonic solicitation. Although the state has a substantial interest in prohibiting the telemarketing of chiropractic services to accident victims, the blanket ban on in-person as well as telephone solicitation is too broad to pass constitutional muster (decided prior to 2015 amendment). Silverman v. Walkup, 21 F. Supp. 2d 775, 1998 U.S. Dist. LEXIS 15823 (E.D. Tenn. 1998).

Chiropractor's license was properly revoked under T.C.A. § 63-4-114 for violating Tenn. Comp. R. & Regs. § 0260-02-.20(6)(a) as the chiropractor admitted that the chiropractor violated the regulation by contacting an accident victim just two days after an accident, even if the chiropractor did so at the request of a family member; it was not arbitrary or capricious to discipline the chiropractor for the incident of solicitation, which occurred in 2000, even though the final order imposing the discipline was entered eight years later. Byrd v. Tenn. Bd. of Chiropractic Examiners, — S.W.3d —, 2011 Tenn. App. LEXIS 440 (Tenn. Ct. App. Aug. 11, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 1178 (Tenn. Dec. 13, 2011), cert. denied, Byrd v. Tenn. Bd of Chiropractic Exam’rs, 182 L. Ed. 2d 869, 132 S. Ct. 2109, 566 U.S. 975, 2012 U.S. LEXIS 3329.

Tennessee Board of Chiropractic Examiners had authority to revoke a chiropractor's license under T.C.A. § 63-4-114(4) as under T.C.A. § 48-101-610(d), a chiropractor could not conduct a practice in a manner that was contrary to the standards of ethics applicable to the profession simply by using the shield of a professional corporation; the chiropractor could not circumvent Tenn. Comp. R. & Regs. § 0260-02-.20(6)(a) by having a medical professional corporation's employees or agents conduct telemarketing that would otherwise be prohibited. Byrd v. Tenn. Bd. of Chiropractic Examiners, — S.W.3d —, 2011 Tenn. App. LEXIS 440 (Tenn. Ct. App. Aug. 11, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 1178 (Tenn. Dec. 13, 2011), cert. denied, Byrd v. Tenn. Bd of Chiropractic Exam’rs, 182 L. Ed. 2d 869, 132 S. Ct. 2109, 566 U.S. 975, 2012 U.S. LEXIS 3329.

4. Sufficiency of Notice.

Sufficiency of the notice was waived by holder of certificate suspended by board when he went to trial before board without raising that question. Janeway v. State Board of Chiropractic Examiners, 33 Tenn. App. 280, 231 S.W.2d 584, 1950 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1950).

63-4-115. Procedure for suspension, revocation or denial of certificate or license.

  1. In enforcing this section, the board shall, upon probable cause, have the authority to compel an applicant or licensee or certificate holder to submit to a mental and/or physical examination, by a designated committee of at least three (3) practicing physicians, including a psychiatrist where a question of mental condition is involved. The applicant or licensee or certificate holder may have an independent physical or mental examination, which examination report shall be filed with the board for consideration. The committee will submit a report of its findings to the board for use in any hearing that may thereafter ensue.
  2. The board, on its own motion, may investigate any report indicating that a chiropractor is or may be in violation of this chapter. Any chiropractor, any chiropractic society or association or any other person who in good faith shall report to the board any information that a chiropractor is or may be in violation of any provisions of this chapter shall not be subject to suit for civil damages as a result thereof.
  3. All proceedings by the board to deny a certificate of fitness, to revoke or suspend any certificate of fitness or license or to otherwise discipline a licensee shall be subject to and conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  4. An elected officer of the board and a hearing officer, arbitrator or mediator, if any, has the authority to administer oaths to witnesses and, upon probable cause being established, issue subpoenas for the attendance of witnesses and the production of documents and records.
  5. The board may utilize one (1) or more screening panels in its investigative and disciplinary process to assure that complaints filed and investigations conducted are meritorious and to act as a mechanism for diversion to professional peer review organizations and/or impaired professionals, associations or foundations those cases that the board, through established guidelines, deems appropriate. Upon diversion, such entities shall retain the same immunity as provided by law for the board.
  6. The screening panels shall consist of as many members as the board directs, but shall include at least one (1) but no more than three (3) licensed chiropractors, who may be members of the board or may serve either voluntarily or through employment by or under contract with the board.
  7. The activities of the screening panels and any mediation or arbitration sessions shall not be construed as meetings of an agency for purposes of the open meetings laws, compiled in title 8, chapter 44, and shall remain confidential. The members of the screening panels, mediators and arbitrators have a deliberative privilege and the same immunity as provided by law for the board and are not subject to deposition or subpoena to testify regarding any matter or issues raised in any contested case, criminal prosecution or civil lawsuit that may result from or be incident to cases processed before them.
  8. Notwithstanding any provision of the Uniform Administrative Procedures Act to the contrary, hearing officers are authorized to and may hear board mediation, arbitration or disciplinary contested cases, but may not issue final orders in contested case matters. Notwithstanding any of §§ 4-5-314 and 4-5-315, that may be or are inconsistent, such hearing officers may only issue findings of fact and conclusions of law, which shall be referred directly to the board or a duly constituted panel thereof for final action. The board or duly constituted panel, after hearing testimony or arguments from both parties regarding the appropriate disciplinary action and, if allowed by the board, arguments on any controversy raised by the hearing officer's or designee's order, shall issue a final order to include the imposition of what, if any, disciplinary action is deemed appropriate. Only the board or a duly constituted panel thereof shall have the authority to issue final orders that dispose of a pending contested case, regardless of whether the issues resulting in the dispositive action are procedural, substantive, factual or legal. If a hearing officer is not available when a contested case, or any motion filed therein requiring action, is ready and scheduled to be heard or fails to timely prepare findings and conclusions pursuant to board established guidelines, the board or a duly constituted panel thereof may rule on the motions and/or hear the contested case or utilize the record compiled before the hearing officers and prepare its own findings of fact, conclusions of law and then issue a final order. With regard to findings or conclusions issued by the hearing officer or any mediator or arbitrator, the board or any duly constituted panel thereof that reviews the case may do any of the following:
    1. Adopt the hearing officer's, mediator's or arbitrator's findings of fact and conclusions of law, in whole or in part;
    2. Make its own findings of fact and conclusions of law, based solely on the record and the expertise of the members of the board or panel, in addition to or in substitution of those made by the hearing officer, mediator or arbitrator;
    3. Remand the matter back to the hearing officer, mediator or arbitrator for action consistent with the board or panel findings and conclusions in the matter; or
    4. Reverse the hearing officer's, mediator's or arbitrator's findings and/or dismiss the matter entirely.
  9. The board retains jurisdiction to modify or refuse to modify, upon request of any party, any of its orders issued pursuant to this section in compliance with procedures established by the board. The board, pursuant to duly promulgated rules, may, whenever a final order is issued after a disciplinary contested case hearing that contains findings that a licensee or other person has violated any provision of this chapter, assess the costs directly related to the prosecution of the case against the licensee or person.
  10. Any elected officer of the board, or any duly appointed or elected chair or any panel of the board or any screening panel and any hearing officer, arbitrator or mediator has the authority to administer oaths to witnesses and, upon probable cause being established, issue subpoenas for the attendance of witnesses and the production of documents and records.

Acts 1923, ch. 9, § 13; Shan. Supp., § 3654a127; Code 1932, § 7021; Acts 1939, ch. 116, § 7; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; mod. C. Supp. 1950, § 7021; Acts 1953, ch. 113, § 35; 1976, ch. 781, § 11; T.C.A. (orig. ed.), § 63-417; Acts 1982, ch. 887, § 7; 1998, ch. 845, § 1; 1998, ch. 973, § 3.

Cross-References. Confidentiality of public records, § 10-7-504.

Payment of costs of investigation and prosecution, § 63-1-144.

Screening panels, § 63-1-138.

Attorney General Opinions. The emergency services board does not have authority to develop and use screening panels to assist with the processing and disposition of disciplinary cases; however, the board of chiropractic examiners, board of medical examiners, and board of nursing are authorized by statute to use screening panels in their investigative and disciplinary processes, OAG 01-055, 2001 Tenn. AG LEXIS 47 (4/10/01).

The board of chiropractic examiners has authority to issue administrative subpoenas to compel the attendance of witnesses or the production of documents prior to the commencement of an administrative action, OAG 01-055, 2001 Tenn. AG LEXIS 47 (4/10/01).

63-4-116. Enjoining violations.

    1. The board, in addition to the powers and duties expressly granted by this chapter in the matter of suspension or revocation of a license and in the matter of the refusal to issue a certificate, is authorized and empowered to petition any circuit or chancery court having jurisdiction to enjoin any person who is practicing or attempting to practice chiropractic without possessing a valid license to so practice and to enjoin any person, firm or corporation from performing any act or rendering any service that constitutes the practice of chiropractic as defined by this chapter.
    2. No injunction bond shall be required of the board.
    3. Jurisdiction is conferred upon the circuit and chancery courts of the state to hear and determine such cases as chancery causes and to exercise full and complete jurisdiction in such injunctive proceedings.
  1. The board is also authorized and empowered to petition any circuit or chancery court having jurisdiction to enjoin any person who is violating § 63-4-114(a)(5). No injunction bond shall be required of the board in such proceedings, and jurisdiction is conferred upon the circuit and chancery courts of this state to hear such cases.

Acts 1923, ch. 9, § 13; Shan. Supp., § 3654a127; Code 1932, § 7021; Acts 1939, ch. 116, § 7; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 7021; Acts 1976, ch. 781, § 12; T.C.A. (orig. ed.), § 63-418; Acts 2015, ch. 121, § 2.

Cross-References. Enjoining violations, § 63-1-121.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. L. Rev. 281.

63-4-117. Violations.

  1. Any person who violates any provision of this chapter commits a Class B misdemeanor.
  2. Any person who has been enjoined by a court of competent jurisdiction from performing any acts or rendering any services that constitute the practice of chiropractic, who thereafter willfully violates the terms of the injunction by again performing such acts or rendering such services commits a Class E felony.

Acts 1923, ch. 9, § 14; Shan. Supp., § 3654a128; Code 1932, § 7022; impl. am. Acts 1947, ch. 9, § 13; C. Supp. 1950, § 7022; Acts 1976, ch. 781, § 13; T.C.A. (orig. ed.), § 63-419; Acts 1989, ch. 591, §§ 81, 112.

Cross-References. Enjoining violations, § 63-1-121.

Penalties, § 63-1-123.

Penalty for Class B misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

63-4-118. Immunity of reviewers from liability.

Any chiropractor who serves on any peer review committee or on any other committee, board, commission or other entity constituted by any statewide chiropractic association, local chiropractic society or governmental or quasi-governmental agency for the purpose of reviewing and evaluating chiropractic acts of other chiropractors or chiropractic auxiliary personnel, shall be immune from liability with respect to any action taken by that chiropractor in good faith and without malice as a member of such committee, board, commission or other entity.

Acts 1975, ch. 228, § 1; T.C.A., § 63-421.

Attorney General Opinions. Liability of chiropractors performing peer review, OAG 98-086, 1998 Tenn. AG LEXIS 86 (4/14/98).

63-4-119. X-ray operators.

    1. The board shall adopt rules and regulations that shall establish minimum educational standards and criteria for persons operating X-ray equipment for diagnostic purposes in chiropractic physicians' offices.
    2. These regulations may include, but are not limited to, provisions for grandfathering, waiver, reciprocity, renewal, continuing education, fees, examination and hardship cases.
  1. No person shall perform X-ray procedures in a chiropractic physician's office who does not meet these standards and who has not received a certificate of proficiency from the board.

Acts 1982, ch. 887, § 3; 1983, ch. 205, § 4.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

63-4-120. Externship certificates.

  1. The board may issue an externship certificate to practice chiropractic, to be used only under supervision of a licensed chiropractor, upon payment of a fee as set by the board, to a chiropractor who meets all qualifications and requirements for licensure pursuant to this chapter and who has applied to take the examinations as provided in § 63-4-110.
  2. Externs will be allowed to perform all diagnostic tests and therapeutic interventions as allowed providers licensed by this chapter.
  3. Externship is to last no longer than three hundred sixty-five (365) days from date of certificate issuance. Applicants who provide proof of illness or hardship that hindered their ability to comply with § 63-4-110 may, at the board's discretion, be allowed a second year of externship.
  4. The board may revoke an extern's certificate for violation of any portion of this chapter for failure to maintain proper supervision. “Supervision” is defined as direct oversight by a Tennessee licensed chiropractor. The supervisor shall be on the facility premises while the extern is conducting patient care.
  5. The board reserves the right to adopt any rules and regulations as the board may deem appropriate for externs and the administration of externship program.
  6. One hundred dollars ($100) shall be the administrative fee for applying to and participating in the externship program for each year of externship.

Acts 1983, ch. 205, § 6; 1989, ch. 523, § 6; 2000, ch. 618, § 7.

63-4-121. Chiropractic preceptor program.

  1. The board will allow the chiropractic preceptor program (CPP) to function in the state so long as the preceptor and the intern meet the qualifications as specified by the chiropractic preceptor program advisory committee, or its equivalent; and provided, all guidelines of the committee are followed.
  2. The board reserves the right to adopt any rules and regulations as the board may deem appropriate for the administration of this program.

Acts 1983, ch. 205, § 5.

63-4-122. Advertising.

  1. The board shall adopt rules and regulations to regulate the nature, manner, content and extent of advertising by practitioners who are under the jurisdiction of such board.
  2. Any licensed chiropractor who advertises or announces to the public that the licensed chiropractor is a certified acupuncturist shall be deemed to have engaged in false, misleading or deceptive advertising.

Acts 1984, ch. 546, § 1; 2006, ch. 775, § 3.

Cross-Reference. Advertising, § 63-1-145.

63-4-123. Minimum educational standards and criteria.

    1. The board shall adopt rules that establish minimum educational standards and criteria for chiropractic therapy assistants performing physical agent modalities, physical treatment, and clinical services that are within the scope of practice of a chiropractic physician and, under the supervision of a chiropractic physician, either in the office of the chiropractic physician or in the presence of the chiropractic physician at another location.
    2. These regulations shall include, but not be limited to, provisions for grandfathering, waiver, reciprocity, renewal, continuing education, fees, examination and hardship cases.
  1. No person shall perform therapeutic procedures in a chiropractic physician's office who does not meet these standards and who has not received a certificate of proficiency from the board.

Acts 1999, ch. 306, § 1; 2017, ch. 455, § 7.

Amendments. The 2017 amendment rewrote (a)(1) which read: “(a)(1) The board shall adopt rules and regulations that shall establish minimum educational standards and criteria for persons performing physical agent modalities and physical treatment in a chiropractic physician's office.”

Effective Dates. Acts 2017, ch. 455, § 8. July 1, 2017.

63-4-124. Special volunteer license for practice in free health clinic — Exemption from fees — Renewal.

A chiropractor licensed pursuant to this chapter under a special volunteer license who is a medical practitioner, as defined by § 63-1-201, engaged in practice at a free health clinic shall not be subject to license fees under this chapter. The board of chiropractic examiners may issue a special volunteer license, as such license is defined in § 63-1-201, to qualified applicants without fee or charge. Such license shall be for a period of two (2) years and may be renewed on a biennial basis.

Acts 2004, ch. 579, § 6.

Chapter 5
Dentists

63-5-101. Board of dentistry.

  1. The practice of dentistry and of dental hygiene shall be under the direct supervision of a board to be known as the board of dentistry, referred to in this chapter as the “board.”
  2. The administrative duties pursuant to licensure and the collection of fees for licensure shall be vested in the division of health related boards of the department of health, referred to in this chapter as the “division.”

Acts 1957, ch. 32, § 2; 1969, ch. 29, § 1; 1978, ch. 824, § 1; T.C.A., § 63-530; Acts 1984, ch. 937, § 19.

Compiler's Notes. The board of dentistry, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Cross-References. Division of health related boards, title 63, ch. 1.

Liability of professional societies, title 62, ch. 50, part 1.

Licensing, §§ 68-1-10368-1-107.

Occupation tax on dentists, title 67, ch. 4, part 17.

Prevention of HIV transmission, rulemaking authority, § 68-11-222.

Sales and use tax exemption, § 67-6-335.

State examining boards, general provisions, title 4, ch. 19.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Licenses, § 14; 18 Tenn. Juris., Mandamus §  11; 20 Tenn. Juris., Physicians and Surgeons, § 5.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777.

63-5-102. Composition of board.

The board shall consist of seven (7) practicing dentists, two (2) practicing dental hygienists and one (1) practicing registered dental assistant, whose duty it is to carry out this chapter. Of the seven (7) dentists, two (2) shall be appointed from each grand division of the state, and the appointment of the other dentists shall alternate among the grand divisions on an equal basis, but without regard to consecutive terms of a board member.

Acts 1957, ch. 32, § 3; 1978, ch. 824, § 2; T.C.A., § 63-531; Acts 1984, ch. 528, § 3; 1990, ch. 1031, § 1; 1997, ch. 53, § 1; 2000, ch. 927, § 3; 2001, ch. 330, § 1.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

63-5-103. Appointment of members — Term of office — Removal.

    1. The dentist members of the board may be appointed by the governor from lists of qualified nominees submitted by interested dentist groups including, but not limited to, the Tennessee Dental Association. No person is eligible for appointment as a dentist member of the board unless such person has been an actual and bona fide resident and a legally licensed practicing dentist of this state for a period of five (5) years or more immediately preceding such appointment.
    2. The dental hygienist members may be appointed by the governor from lists of qualified nominees submitted by interested dental hygienist groups including, but not limited to, the Tennessee Dental Hygienists Association. No person is eligible for appointment as a dental hygienist member of the board unless that person has been an actual and bona fide resident and a legally licensed practicing dental hygienist of this state for a period of five (5) years or more immediately preceding such appointment.
    3. The dental assistant member may be appointed by the governor from lists of qualified nominees submitted by interested dental assistant groups including, but not limited to, the Tennessee Dental Assistants' Association. No person is eligible for appointment as a dental assistant member of the board unless that person has been an actual and bona fide resident and has been a legally registered and practicing dental assistant of this state for a period of five (5) years or more immediately preceding such appointment.
  1. The governor shall consult with interested dental groups, including, but not limited to, the Tennessee Dental Association, the Tennessee Dental Hygienists Association and the Tennessee Dental Assistants' Association to determine qualified persons to fill the positions as provided in subsection (a).
  2. The terms of members of the board are three (3) years, with the terms staggered so that the terms of no more than three (3) members expire each year. No member is eligible to serve on the board for more than three (3) consecutive full terms, but any person thus ineligible shall thereafter be eligible for nomination and appointment to the board, as provided in this section, after three (3) years have elapsed since that person's previous service on the board.
    1. The governor shall make appointments to the board not later than one (1) month after the expiration of the term of office of any member and such or further delay in the appointment shall be deducted from the term of the appointment. All vacancies occurring in the board by such reasons as death or resignation shall be filled by the governor for the unexpired term from lists submitted to the governor as provided in this section. If such vacancy is not filled within thirty (30) days by the governor, the board itself shall fill such vacancy for the unexpired term. No person is eligible to appointment to the board who is regularly employed by or is a member of the governing body of any dental school, college or dental department of any university or any school of dental hygiene or dental assisting or with any dental supply business or dental laboratory.
    2. In making appointments to the board, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority.
  3. Members of the board shall continue in office until the expiration of the terms for which they were respectively appointed and until such time as their successors have been duly appointed.
    1. A member of the board may be removed upon one (1) or more of the following grounds:
      1. The refusal or inability for any reason of a board member to perform that member's duties as a member of the board in an efficient, responsible and professional manner;
      2. The misuse of office by a member of the board to obtain personal, pecuniary or material gain or advantage for that member or another through such office; or
      3. The violation of this chapter or of any of the rules and regulations of the board hereafter properly promulgated.
    2. The proceedings for such removal shall be in accordance with title 8, chapter 47.

Acts 1957, ch. 32, § 4; 1978, ch. 824, § 3; 1981, ch. 99, § 1; T.C.A., § 63-532; Acts 1984, ch. 528, § 4; 1985, ch. 71, § 1; 1986, ch. 501, § 1; 1988, ch. 1013, § 42; 1990, ch. 1031, §§ 2, 3; 1997, ch. 53, § 2; 2000, ch. 927, §§ 4, 5; 2001, ch. 330, § 2; 2012, ch. 628, §§ 1, 2.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

63-5-104. Board meetings and officers — Records — Copy of law to licensees.

    1. The board shall meet at least annually and at such times and places as it may deem necessary for the proper discharge of its duties.
    2. At its annual meeting the board shall elect from its membership a president, vice president and secretary-treasurer.
    3. A majority of the members shall constitute a quorum for the transaction of business.
    4. The proceedings of the board shall be recorded and shall constitute a public record.
  1. The board shall maintain and make available to the division a permanent record that shall list the name, address and license or certificate number of all persons licensed to practice dentistry and of all persons certified as dental specialists, licensed as dental hygienists and registered as dental assistants.
  2. The board shall mail a copy of the law regulating the practice of dentistry to each person who is hereafter licensed to practice dentistry or dental hygiene.

Acts 1957, ch. 32, § 5; 1978, ch. 824, § 4; T.C.A., § 63-533; Acts 1984, ch. 937, § 20; 1990, ch. 1031, §§ 4, 5.

63-5-105. Powers of board.

The board has the following powers and duties in addition to the powers and duties granted to or imposed upon it by the other sections of this chapter:

  1. Prescribe rules and regulations for examination of candidates;
  2. Conduct examinations to ascertain the qualifications and fitness of applicants for licenses to practice dentistry and of applicants for certificates to practice a specialty in dentistry or licenses to practice as a dental hygienist or registered as a dental assistant;
  3. Provide standards by which dental schools and colleges, graduate dental programs in hospital settings, schools of dental hygiene and courses of instruction for dental assistants are approved;
  4. Issue licenses to applicants who successfully pass the examination for the practice of dentistry and dental hygiene, to issue certificates to specialists in dentistry who successfully pass the respective examinations for such certificates and to register dental assistants who meet such standards of competency as the board may require by rules and regulations and who pay a nonrefundable application fee as set annually by the board;
  5. Conduct hearings to revoke, suspend or otherwise lawfully discipline the holder of any license or certificate issued under the authority of this chapter or any previous laws authorizing the holder thereof to practice dentistry, a specialty in dentistry, dental hygiene or as a certified and/or registered dental assistant for violations by the licensee or certificate holder of any of the provisions of this chapter or any rule of the board hereafter properly promulgated by the board;
  6. Provide for any evaluations, including onsite, of facilities, equipment and personnel of dentists who use general anesthesia, deep sedation or conscious sedation as the board determines appropriate in the interest of public safety; and
  7. To make such rules and regulations and establish such fees as are necessary to carry out and make effective this chapter.

Acts 1957, ch. 32, § 6; 1978, ch. 824, § 5; 1981, ch. 99, § 2; T.C.A., § 63-534; Acts 1984, ch. 937, § 21; 1988, ch. 635, §§ 1, 2; 1989, ch. 523, § 7; 1990, ch. 1031, §§ 6-8; 1997, ch. 53, § 3; 1999, ch. 341, § 1; 2001, ch. 330, § 3.

63-5-106. Annual report of board.

The board shall make an annual report of its proceedings and activities to the governor, with copies to be made available to any interested parties.

Acts 1957, ch. 32, § 7; 1981, ch. 99, § 3; T.C.A., § 63-535.

63-5-107. License requirement.

  1. It is unlawful for any person to practice dentistry, a specialty in dentistry or dental hygiene in this state, except those who are now licensed or certified as such pursuant to law and those who may hereafter be licensed or certified and registered pursuant to this chapter.
  2. It is unlawful for any person so licensed or certified to practice dentistry or to practice dental hygiene in any calendar year unless or until such person has paid the annual renewal fee for that year as provided in this chapter.
    1. Each person licensed as a dentist or a dental hygienist in accordance with this chapter or registered as a dental assistant pursuant to the rules of the board is required to attend and complete each year, except in the year of initial licensure or registration, the number of hours of board approved continuing education courses prescribed by the board, subject to a minimum of twelve (12) and a maximum of thirty (30) clock hours; provided, that beginning January 3, 2003, in lieu of the annual continuing education requirement, each person licensed as a dentist or dental hygienist or registered as a dental assistant is required to attend and complete during each two-year cycle, except for the two-year cycle of initial licensure, the number of hours of board approved continuing education courses that are prescribed by the board, subject to a minimum of twenty-four (24) and a maximum of sixty (60) clock hours. However, for the purposes of the biennial continuing education requirement for dental hygienists, no more than fifty percent (50%) of such continuing education requirement may be earned from on-line or web-based courses. Sponsors of such courses shall submit a sufficient description of course content to the board in order to obtain approval. The board may approve all, part or none of the course at its discretion. Additional procedures for implementing this requirement may be adopted by the board in its regulations. The board may waive all or part of the continuing education requirements in unusual situations in which an applicant for renewal has demonstrated inability to attend such courses not attributable to fault of the applicant. The board shall have discretion to require completion of continuing education courses of a type and number of hours satisfactory to the board in cases involving license renewal of dentists or dental hygienists who have not actively practiced or have been retired from practice for more than two (2) years. In addition to the foregoing, all applicants shall provide proof of current CPR certification by an organization approved by the board unless such requirement is waived by the board in its discretion; provided, that no dentist who obtains a waiver from the board for CPR requirements shall practice dentistry unless a dentist, dental hygienist or dental assistant who is currently certified in CPR is present.
    2. The board may, but is not required to, monitor or verify certificates of completion submitted by applicants for license renewal. In its discretion, by random sample or in individual cases, the board may require proof of attendance or otherwise investigate compliance with this subsection (c).

Acts 1957, ch. 32, § 8; T.C.A., § 63-536; Acts 1989, ch. 591, § 112; 1990, ch. 1031, § 9; 1991, ch. 143, § 1; 1992, ch. 859, § 1; 2002, ch. 771, § 1; 2007, ch. 340, § 1; 2010, ch. 811, § 1.

Cross-References. Penalty for violation of subsection (a), § 63-5-128.

Law Reviews.

Criminal Law and Procedure — 1960 Tennessee Survey (Robert E. Kendrick), 13 Vand. L. Rev. 1059.

NOTES TO DECISIONS

1. Evidence.

In prosecution for practicing dentistry without a license, trial court did not err in permitting secretary of healing arts board to testify as to what his records contained. Hooper v. State, 205 Tenn. 126, 325 S.W.2d 561, 1959 Tenn. LEXIS 347 (1959).

2. Finding of Fact.

In prosecution for practicing dentistry without a license, it was error for trial court to charge jury that defendant did not have a license and such error was not cured by instructions that it was province of jury to find the facts and that jury was not to imagine that court had any opinion as to what the facts were. Hooper v. State, 205 Tenn. 126, 325 S.W.2d 561, 1959 Tenn. LEXIS 347 (1959).

3. Injunction.

Injunction restraining person from unlawfully practicing dentistry was in furtherance of criminal laws and contempt of such injunction was criminal rather than civil. Hooper v. State ex rel. Nichol, 205 Tenn. 134, 325 S.W.2d 565, 1959 Tenn. LEXIS 348 (1959).

Criminal court has jurisdiction of proceeding for contempt of injunction prohibiting unlawful practice of dentistry. Hooper v. State ex rel. Nichol, 205 Tenn. 134, 325 S.W.2d 565, 1959 Tenn. LEXIS 348 (1959).

Contempt proceedings against defendant who violated injunction against unlawful practice of dentistry were proper even though judgment finding guilty of unlawful practice was reversed since such judgment was voidable only rather than void. Hooper v. State ex rel. Nichol, 205 Tenn. 134, 325 S.W.2d 565, 1959 Tenn. LEXIS 348 (1959).

63-5-108. Practice of dentistry and dental hygiene defined.

  1. Dentistry is defined as the evaluation, diagnosis, prevention and/or treatment, by nonsurgical, surgical or related procedures, of diseases, disorders and/or conditions of the oral cavity, maxillofacial area and/or the adjacent and associated structures and their impact on the human body, provided by a dentist within the scope of such dentist's education, training, and experience, in accordance with the ethics of the profession and applicable law.
  2. Any person is deemed to be practicing dentistry who, either gratuitously or for a salary, fee, money or other remuneration, paid or to be paid, directly to the operator or to any person or agency:
    1. Diagnoses, prescribes for or treats any disease, pain, deformity, deficiency, injury, disorder and condition of the oral cavity, maxillofacial area and the adjacent and associated structures and their impact on the human body. Such diagnosis and treatment may include the use of a complete or limited physical evaluation of patients by a board eligible or board certified oral and maxillofacial surgeon or a resident in an approved oral and maxillofacial surgery program practicing in a hospital setting;
    2. Extracts human teeth;
    3. Repairs or fills cavities in human teeth;
    4. Corrects malformations of human teeth or of the jaws;
    5. Performs any oral and maxillofacial surgery;
    6. Subject to subsection (d), takes an impression of the human tooth, teeth or jaws, leading to either:
      1. The fabrication of a model upon which will be constructed a replacement of natural teeth by artificial substitutes; or
      2. The fabrication of a cosmetic metal apparatus to be worn in the human mouth, whether or not the apparatus features silver, gold or platinum caps, jeweled inlays or any other cosmetic features;
    7. Furnishes, supplies, constructs, alters, reproduces or repairs any prosthetic denture, bridge, crown, appliance or any other structure to be used or worn in the human mouth as a substitute for natural teeth, except on the written work order of a licensed and registered dentist;
    8. Places or adjusts such appliance or structure in the human mouth;
    9. Delivers the same to any person other than the licensed and registered dentist upon whose written work order the work was performed;
    10. Offers to the public by any method to furnish, supply, construct, reproduce, reline, repair or otherwise process any prosthetic denture, bridge, appliance or other structure to be worn in the human mouth;
    11. Gives interpretations of dental radiographs;
    12. Administers an anesthetic, except for a topical anesthetic in connection with a dental operation; provided, however, that a duly licensed dentist may delegate the administration of local anesthetic to dental hygienists who possess a permit to do so issued by the board. The board shall establish the qualifications, criteria and curricula required for issuance of permits to administer local anesthetic, by infiltration or by block, to duly licensed dental hygienists;
    13. Uses the words, “Dentist,” “Dental Surgeon,” “Oral Surgeon,” “Oral and Maxillofacial Surgeon,” or letters “D.D.S.,” “D.M.D.,” or any other words, letters, title, or descriptive matter that in any way represents the person as being able to diagnose, treat, prescribe or operate for any disease, pain, deformity, deficiency, injury, disorder, and condition of the oral cavity, maxillofacial area and the adjacent and associated structures and their impact on the human body;
    14. States, or permits to be stated by any means or method whatsoever, that the person can or will attempt to perform dental operations or services or to render diagnosis in connection therewith;
    15. Is the operator of a place where dental operations or dental services are performed; or
    16. Authorizes the practice of “teledentistry” which, as used in this section, means the delivery of dental health care and patient consultation through the use of telehealth systems and technologies, including live, two-way interactions between a patient and a dentist licensed in this state using audiovisual telecommunications technology, or the secure transmission of electronic health records and medical data to a dentist licensed in this state to facilitate evaluation and treatment of the patient outside of a real-time or in-person interaction. Dentists who are licensed in this state and who deliver services using teledentistry shall establish protocols for the practice that should include proper methods of keeping the patient fully informed; proper safeguards ensuring that all state and federal laws and regulations relative to the privacy of health information are followed; proper documentation of all services or treatment rendered via teledentistry; proper procedures to ensure the referral of those patients requiring treatment beyond what can be provided via teledentistry to a dentist licensed in this state; and any such requirements as prescribed by the board of dentistry. Any and all services provided via teledentistry shall be consistent with the in-person provision of those services. Any and all services provided via teledentistry shall comply with this chapter and shall be provided in accordance with the rules of the board of dentistry.
    1. A dental hygienist is an individual who has graduated from a dental hygiene program accredited by the American Dental Association's Commission on Dental Accreditation (CODA) and is licensed under this chapter to practice dental hygiene.
    2. The practice of dental hygiene means the performance of preventive, educational, and therapeutic services including the removal of all hard and soft deposits and the stain from the human teeth to the depth of the gingival sulcus, polishing natural and restored surfaces of teeth, performing clinical examination of teeth and surrounding tissues for diagnosis by the dentist, and performing other procedures that may be delegated by the dentist, under the supervision of a licensed dentist.
    3. No person shall practice dental hygiene in a manner that is separate or independent from a supervising dentist, or establish or maintain an office or a practice that is primarily devoted to the provision of dental hygiene services.
    4. A dental hygienist shall perform, under direct supervision only, root planing, subgingival curettage, administering nitrous oxide, and local anesthesia.
    5. Under general supervision a dental hygienist may provide to patients, for not more than fifteen (15) consecutive business days, all other dental hygiene services not otherwise limited to direct supervision by this chapter or rules adopted by the board, if all of the following requirements are met:
      1. The dental hygienist has at least one (1) year, full-time, or an equivalent amount of experience practicing dental hygiene;
      2. The dental hygienist complies with written protocols for emergencies that the supervising dentist establishes;
      3. The supervising dentist examined the patient not more than eleven (11) months prior to the date the dental hygienist provides the dental hygiene services;
      4. The dental hygienist provides dental hygiene services to the patient in accordance with a written treatment plan developed by the supervising dentist for the patient; and
      5. The patient is notified in advance of the appointment that the supervising dentist will be absent from the location and that the dental hygienist cannot diagnose the patient's dental health care status.
  3. Any duly licensed and registered dentist may assign to duly licensed and registered dental hygienists, registered dental assistants and/or practical dental assistants, as defined by the board in rules and regulations, any tasks or procedures to be performed in the dentist's office for which a licensed and registered dentist exercises direct supervision and full responsibility, except those procedures requiring the professional judgment or skill of a dentist; provided, that duties involving the removal of hard and soft deposits by scaling or curretage from the surfaces of human teeth are assigned only to duly licensed and registered dental hygienists. The board has the authority to permit registered dental assistants to apply sealants to and to polish human teeth, and the board has the discretion to establish criteria and curricula as necessary to ensure that such registered dental assistants are qualified to apply sealants and perform polishing. For eligibility to perform polishing, passage of a clinical and didactic examination  is required. The board is authorized to permit licensed and registered dental hygienists and registered dental assistants to insert, pack, carve and finish amalgam and intracoronal nonmetallic restorations and take final impressions for fixed and removable prosthetic appliances, under the direct supervision and full responsibility of a licensed dentist, and the board shall establish such criteria and curricula as it determines in its discretion are necessary or appropriate to ensure that such hygienists and assistants are qualified to perform such procedures. Tasks and procedures assignable to licensed and registered dental hygienists shall include those enumerated in the board's regulations as of January 1, 1990, and such other additional tasks and procedures as the board may deem appropriate in the future. Procedures requiring professional judgment or skill not assignable to such dental hygienists and dental assistants include the following:
    1. Diagnosis and treatment planning; oral surgery, the cutting of hard and/or soft tissues, excluding any cutting of such tissues involved in subgingival scaling, root planing and gingival curettage, and any intra-oral procedures that would affect the function and/or efficiency of an appliance that, when worn by the patient, would come in direct contact with hard or soft tissue and that could result in tissue irritation or injury;
    2. The placing of permanent fillings or restorations in or on teeth except as provided in this subsection (d); and
    3. Administration of a general or local anesthetic, except for a topical anesthetic in connection with a dental operation; provided, however, that dental hygienists who possess a permit issued pursuant to subdivision (b)(12) may administer a local anesthetic but only under the direct supervision of a licensed and registered dentist who is physically present at the same office location and time and in accordance with rules and regulations of the board.
  4. Notwithstanding any provision of law to the contrary, a dental hygienist may administer nitrous oxide analgesia if directed by a dentist to do so, in accordance with rules and regulations of the board of dentistry, under the direct supervision of a licensed and registered dentist. Patients who have been administered nitrous oxide shall be monitored appropriately.
    1. Except as provided in subdivision (f)(2), a licensed dentist shall not allow, under general supervision, more than three (3) dental hygienists to work at any one (1) time.
    2. A dentist may supervise, under direct supervision, no more than ten (10) dental hygienists while the dentist and each hygienist is providing dental services on a volunteer basis through a nonprofit provider of free mobile clinics in this state.
  5. Any duly licensed and registered dentist who uses general anesthesia, deep sedation or conscious sedation in that dentist's practice, at a level to be determined by the board, must secure a permit from the board by meeting the standards as set in rules and regulations and by paying fees set by the board. Such permit is subject to renewal at intervals upon payment of a fee as set by the board in rules and regulations. Any dental facility in which general anesthesia, deep sedation or conscious sedation is administered by such dentist is subject to standards as may be specified in rules and regulations of the board, including, but not limited to, a facility permit.
    1. Notwithstanding any law to the contrary, the practice of dental hygiene also includes prescriptive authority limited to fluoride agents, topical oral anesthetic agents, and nonsystemic oral antimicrobials that:
      1. Are not controlled substances under state and federal drug laws; and
      2. Do not require a license from the federal drug enforcement agency.
    2. Prescriptive authority under this section must be:
      1. Exercised under the general supervision of a licensed dentist;
      2. Pursuant to rules promulgated by the board; and
      3. In compliance with all applicable laws concerning prescription packaging, labeling, and record keeping requirements.
    3. A prescription written by a dental hygienist under this part must be reviewed by a dentist within thirty (30) days.
    4. The board shall determine by rule the educational and training requirements necessary for a dental hygienist to exercise prescriptive authority pursuant to this section.
    5. The board shall determine by rule the percentage of fluoride or any other active ingredient in any medication that may be prescribed by a dental hygienist under this subsection (h).

Acts 1957, ch. 32, § 9; 1963, ch. 107, § 1; 1969, ch. 29, § 2; 1978, ch. 824, § 6; 1981, ch. 99, § 4; T.C.A., § 63-537; Acts 1988, ch. 635, §§ 3-7; 1989, ch. 523, § 8; 1990, ch. 1031, §§ 10, 11; 1998, ch. 847, §§ 1-3; 1999, ch. 405, §§ 1, 2; 2000, ch. 839, § 1; 2001, ch. 330, § 4; 2002, ch. 771, §§ 2-4; 2003, ch. 161, § 1; 2003, ch. 237, §§ 1-4; 2004, ch. 615, §§ 1-3; 2007, ch. 120, § 1; 2010, ch. 1043, § 8; 2011, ch. 132, § 1; 2012, ch. 945, § 1; 2016, ch. 918, § 1; 2019, ch. 319, § 1; 2020, ch. 724, § 1.

Amendments. The 2019 amendment, effective July 1, 2020, added (h).

The 2020 amendment, in (f)(1), inserted “Except as provided in subdivision (f)(2),” and substituted “shall not” for “may not”; and added (f)(2).

Effective Dates. Acts 2019, ch. 319, § 2. July 1, 2020; provided, that for purposes of promulgating rules, the act took effect May 8, 2019.

Acts 2020, ch. 724, § 2. July 1, 2020.

Cross-References. Employment of and practice by hygienists and assistants, § 63-5-115.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Physicians and Surgeons, § 5.

Law Reviews.

Criminal Law and Procedure — 1960 Tennessee Survey (Robert E. Kendrick), 13 Vand. L. Rev. 1059.

Attorney General Opinions. Use of botox, other neurotoxins, and dermal fillers by a general dentist.  OAG 14-51, 2014 Tenn. AG LEXIS 54 (4/24/14).

NOTES TO DECISIONS

1. Constitutionality.

A statute regulating the practice of dentistry and defining such practice was not unconstitutional. Hooper v. State, 206 Tenn. 489, 334 S.W.2d 730, 1960 Tenn. LEXIS 386 (1960).

2. False Teeth.

Where a person made impressions, fitted and adjusted false teeth and charged for the work without a license, an injunction was properly issued. State Board of Dental Examiners v. Rymer, 202 Tenn. 234, 303 S.W.2d 959, 1957 Tenn. LEXIS 385 (1957).

63-5-109. Exemptions.

The following persons, acts, practices and operations are exempt from the other provisions of this chapter:

  1. The practice of their professions by physicians or surgeons licensed as such under the laws of this state, unless they practice dentistry as a specialty;
  2. The practice of dentistry and dental hygiene in the discharge of their official duties by graduate dentists and by dental hygienists in the United States public health service, army, navy, air force, coast guard or veterans administration;
  3. The practice of dentistry by licensed dentists or the practice of dental hygiene by licensed dental hygienists of other states or countries at meetings of the Tennessee Dental Association or Pan Tennessee Dental Association, or component parts thereof, alumni meetings of dental colleges or any other like dental organizations while appearing as clinicians;
  4. Licensed dentists or dental hygienists of other states who are called into Tennessee by licensed dentists of this state for consultative or operative purposes if the board or its designee gives discretionary advance approval in each such instance;
  5. The practice of dentistry or of dental hygiene by graduates of schools or colleges recognized by the board who are duly licensed in other states in the discharge of their official duties in state-supported institutions or official health agencies or other special projects approved by the board between the time of their employment as such and the next examination and licensing by the board;
  6. The practice of dentistry or of dental hygiene by students under the supervision of instructors in any dental school, college or dental department of any school, college, university or school of dental hygiene recognized by the board, but such activities shall not be carried on for profit;
  7. The giving by a registered nurse anesthetist of any anesthetic for a dental operation under the direct supervision of a licensed dentist;
  8. The construction, reproduction, restoration, alteration or repair of bridges, crowns, dentures or any other prosthetic or orthodontic appliances or materials to be used or worn as substitutes for natural teeth or for correction or regulation of natural teeth, upon order, prescription or direction of a licensed dentist, when the impressions, casts or models thereof have been made or taken by a licensed and registered dentist, a licensed and registered dental hygienist under the direct supervision of a licensed and registered dentist or a registered dental assistant under the direct supervision of a licensed and registered dentist; provided, that such prosthetic dentures or orthodontic appliances or bridges or the services rendered in construction, repair, restoration or alteration thereof are not advertised, other than in a professional or trade journal, or by direct mail to licensed dentists or other laboratories and are not sold or delivered directly or indirectly to the public by any unlicensed person or dental laboratory, either as principal or as agent;
  9. Dental interns and externs or graduates of dental and dental hygiene schools or colleges recognized by the board employed by licensed hospitals or other agencies recognized and approved by the board;
  10. Personnel involved in research or developmental projects, approved by the board, that are under the auspices and direction of a recognized educational institution or the department of health;
  11. Graduates of dental schools or colleges serving as clinical instructors in board-recognized teaching institutions, while performing only those duties required by and under the supervision of such teaching institutions, upon completing prescribed registration forms and payment of a fee as set by the board; however, such exemption shall be confined to the interim immediately prior to the next scheduled applicable examination of the board and shall not be extended if the applicant does not successfully pass the examination;
  12. Dentists and dental hygienists duly licensed in other states who desire to work with special projects recognized and approved by the board may do so under the sponsorship of a local dentist and the auspices of the local dental society for a period of six (6) months;
  13. Dentists or dental hygienists duly licensed in other states practicing within authorized Tennessee department of health programs or programs affiliated with the Tennessee department of health for a period not to exceed twenty-four (24) months;
  14. The application of fluoride varnish to the teeth of at-risk, underserved persons in or under the auspices of a state, county or municipal public health clinic by public health nurses or nurse practitioners;
  15. The application of dental sealants to the teeth of individuals in a setting under the direction of a state or local health department by licensed hygienists, without requiring an evaluation by a dentist prior to such application, under a protocol established by the state or a metropolitan health department; or
  16. The application of topical fluoride to the teeth of individuals in a setting under the direction of a state or local health department by licensed hygienists, without requiring an evaluation by a dentist prior to such application, under a protocol established by the state or a metropolitan health department.

Acts 1957, ch. 32, § 10; 1969, ch. 29, § 3; 1973, ch. 166, §§ 2, 3; 1978, ch. 824, § 7; 1981, ch. 99, § 5; T.C.A., § 63-538; Acts 1984, ch. 937, § 22; 1985, ch. 71, § 2; 1988, ch. 635, §§ 8, 9; 1989, ch. 523, § 9; 1990, ch. 1031, §§ 12, 13; 2002, ch. 771, §§ 5, 6; 2004, ch. 563, § 1; 2013, ch. 110, §§ 1-3.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Physicians and Surgeons, § 5.

63-5-110. Application for license — Reciprocity.

    1. A person desiring to obtain a license to practice dentistry in this state shall make application to the board. The application must be accompanied by a certificate showing that the applicant is a graduate of an accredited dental school or college or from the dental department of a university approved by the board.
    2. The applicant shall be at least eighteen (18) years of age, a citizen of the United States or Canada or legally entitled to live within the United States and of good moral character and reputation.
    3. The application must be accompanied by the applicant's photograph and by a nonrefundable application fee as set by the board in rules and regulations.
  1. The board is authorized to cause a license to be issued to an applicant of good moral character and professional competence who is licensed to practice dentistry in another state, which shall include the District of Columbia or a territory of the United States, if the board determines to its satisfaction that the applicant meets all of the following requirements:
    1. Currently holds a valid license to practice dentistry in another state and provides a copy of such license, and also provides the name of another state in which the applicant is or has been licensed;
    2. Absence of any pending disciplinary charges or action in another state or any current investigation by a disciplinary authority or another state and provides pertinent information about any disciplinary action imposed against the applicant in any other state, which the board is to evaluate and determine whether such is disqualifying for licensure in this state;
    3. Has not failed previously an examination for licensure to practice dentistry in Tennessee;
    4. Graduation from a dental school or college duly accredited by the American Dental Association Commission on Dental Accreditation;
    5. Demonstrates intent to actively practice or teach in Tennessee;
    6. Has, pursuant to the authority of a state dental licensing board or boards:
      1. Practiced dentistry in another state or states for at least five (5) years;
      2. Taught in an American Dental Association accredited institution for at least five (5) years;
      3. Any combination of subdivision (b)(6)(A) or subdivision (b)(6)(B) for at least five (5) years;
      4. Practiced dentistry for at least two (2) years in another state or states and, in addition, presents satisfactory evidence of passing an examination administered by another state substantially equivalent to the examination required for initial licensure in Tennessee, the appropriateness of such examinations to be evaluated and determined by the board;
      5. Taught for at least two (2) years in an American Dental Association accredited institution and, in addition, presents satisfactory evidence of passing an examination administered by a regional testing agency or a clinical board examination administered by another state substantially equivalent to the examination required for initial licensure in Tennessee, the appropriateness of such examination to be evaluated and determined by the board; or
      6. Any combination of subdivision (b)(6)(D) or subdivision (b)(6)(E) for at least two (2) years; and
    7. Payment of a nonrefundable application fee as set by the board.
  2. The board is authorized, in its discretion, to issue a limited license for educational purposes to any dentist who is duly licensed to practice in any other state who meets the requirements of the board and who submits satisfactory evidence of good moral character and professional competence, including a certificate to that effect from the licensing or registration board from all states in which the applicant has held a license, upon payment of a nonrefundable fee as set by the board.
  3. The board shall direct the division to issue a license to an applicant, without the necessity of further examination except as required by § 63-5-113, if the board determines that the applicant meets all of the following qualifications:
    1. Is a graduate with either a D.D.S. or D.M.D. degree of an accredited dental school or college or of a dental department of a university approved by the board;
    2. Is licensed to practice dentistry in another state, the District of Columbia, the Commonwealth of Puerto Rico or a dependency of the United States;
    3. Has successfully completed a graduate training program in a recognized specialty branch of dentistry; and
    4. Is currently duly licensed to practice medicine in this state.
  4. The board is authorized, in its discretion, to issue a limited license for the practice of dentistry in American Dental Association accredited institutions or dental education programs or in federally-designated health professional shortage areas, if the applicant meets the following requirements:
    1. Is a graduate of a school of dentistry with a degree substantially equivalent to either a D.D.S. or D.M.D. degree;
    2. Has successfully completed a graduate training program in a recognized specialty branch of dentistry from an advanced specialty program accredited by the American Dental Association;
    3. Has successfully completed the national board examinations;
    4. Payment of nonrefundable fee, as set by the board;
    5. Provides satisfactory evidence of good moral character and professional competency;
    6. Provides proof of naturalization or ability to live and work in the United States; and
    7. Meets other requirements as set by the board.

Acts 1957, ch. 32, § 11; 1963, ch. 107, § 2; 1971, ch. 161, § 2; 1973, ch. 166, § 4; 1976, ch. 497, § 1; 1978, ch. 824, § 8; 1981, ch. 99, § 6; T.C.A., § 63-539; Acts 1984, ch. 608, § 1; 1984, ch. 937, § 23; 1988, ch. 635, § 10; 1989, ch. 523, § 10; 1991, ch. 143, § 2; 2001, ch. 330, § 5; 2002, ch. 771, § 7.

Cross-References. Licensing, §§  63-1-10363-1-107.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Physicians and Surgeons, § 5.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

63-5-111. Examinations — Issuance or denial of licenses.

    1. The board may conduct examinations at such times and places as it may designate and charge each examinee a fee for each examination taken as set annually by the board.
    2. The examination may be written or oral, or both, shall include subjects as may be designated by the board and may also include practical tests, working operations and demonstrations, within the discretion of the board.
    3. The board shall recognize a certificate granted by the American Dental Association's Commission on National Board Dental Examinations and may accept the results of its own board examination or the results of an examination conducted by one (1) or more of the regional testing agencies.
    1. If the applicant shall successfully pass the examination and shall be found worthy, the board shall direct the division to issue a license to that applicant.
    2. The board may, within its discretion, refuse to grant a certificate to any person found guilty of making false statements, cheating or of any fraud or deception, either in applying for or in taking the examination.
    3. The board may, within its discretion, refuse to issue a license to any person who fails to apply for the same within ninety (90) days following notification of successful completion of all requirements for the licensure.

Acts 1957, ch. 32, § 12; 1965, ch. 216, § 4; 1969, ch. 29, § 4; 1976, ch. 497, § 2; 1978, ch. 824, § 9; 1981, ch. 99, § 7; T.C.A., § 63-540; Acts 1984, ch. 608, § 2; 1984, ch. 937, §§ 24, 25; 1989, ch. 523, § 11; 2002, ch. 771, § 8.

63-5-112. Specialists.

  1. No licensed dentist shall claim to the public to be a specialist, or be specially qualified in any particular branch of dentistry or to be giving special attention to any branch of dentistry, or claim to limit the dentist's practice to any branch of dentistry, until that dentist has complied with the additional requirements established by the board and has been issued a certificate by the board authorizing that dentist so to do. The board is authorized to certify “specialists” in the following branches of dentistry:
    1. Dental public health;
    2. Endodontics;
    3. Oral and maxillofacial pathology;
    4. Oral and maxillofacial surgery;
    5. Orthodontics and dentofacial orthopedics;
    6. Pediatric dentistry;
    7. Periodontics;
    8. Prosthodontics;
    9. Oral and maxillofacial radiology; and
    10. Any other branch of dentistry hereafter recognized as a specialty by the American Dental Association and approved by the board.
  2. Oral and maxillofacial surgeons are held to the same standard of care as physicians licensed under chapters 6 or 9 of this title.
  3. In considering or acting upon matters related to specialists or special areas of dentistry, the board shall utilize as consultants one (1) or more knowledgeable persons certified in the applicable specialty or knowledgeable in the special area.

Acts 1957, ch. 32, § 13; 1969, ch. 29, § 5; 1981, ch. 99, § 8; T.C.A., § 63-541; Acts 1988, ch. 635, § 11; 1996, ch. 766, § 1; 2001, ch. 330, § 6; 2003, ch. 237, § 5.

Cross-References. Advertising pursuant to board certification and speciality, § 63-1-145.

NOTES TO DECISIONS

1. Advertising.

Rule of the board of dentistry that required a general dentist who practiced orthodontics but was not specially certified as an orthodontist to include in advertisements of his practice that he was performing the services as a general dentist did not violate constitutional free speech provisions. Douglas v. State, 921 S.W.2d 180, 1996 Tenn. LEXIS 253 (Tenn. 1996).

63-5-113. Examination and certification of specialists.

  1. Any dentist duly licensed in this state who has completed a minimum of two (2) years of graduate education in a dental school accredited by the Commission on Dental Accreditation or the equivalent thereof in a specialty branch of dentistry or who has otherwise met the requirements of the rules promulgated by the board may apply for a certificate as a specialist.
  2. The board may recognize specialty certification of those dentists licensed through the licensure criteria provisions of § 63-5-110, if the requirements for certification in the original state are substantially equivalent to those requirements in this state.
  3. No one shall offer or conduct any school, course, or program that grants credentialed status or that graduates individuals for credentialed status, or its equivalent, in any particular branch of dentistry or any specific area of the practice of dentistry that is not listed as a recognized specialty in § 63-5-112. Dental, dental hygiene, and dental assisting colleges, schools, or programs in this state that are accredited by the Commission on Dental Accreditation are exempt from this subsection (c).

Acts 1957, ch. 32, § 14; 1969, ch. 29, § 6; 1978, ch. 824, § 10; 1981, ch. 99, § 9; T.C.A., § 63-542; Acts 1988, ch. 635, §§ 12, 13; 1989, ch. 523, § 12; 1997, ch. 497, § 1; 2004, ch. 720, § 1; 2015, ch. 194, § 1.

63-5-114. Dental hygienists — Examination — Licensure — Reciprocity.

  1. The board is authorized to issue a license to practice dental hygiene to applicants who are citizens of the United States or Canada or who are legally entitled to live within the United States, who have graduated and received a diploma from a dental hygiene program accredited by the American Dental Association's Commission on Dental Accreditation, that provides a minimum of two (2) academic years of dental hygiene curriculum and that may be completed in a period of time less than two (2) years, in or through an institution of higher education accredited by an agency recognized by the United States department of education to offer college-level programs and who have successfully passed such examinations as may be established by the board. The board may recognize a certificate granted by the joint commission of national dental examinations or accept the results of the southern regional testing agency, or either organization, in lieu of or subject to such examinations as may be required by the board.
    1. Each applicant for a license as a dental hygienist shall pay a nonrefundable application fee to the board, as set annually by the board.
    2. Any applicant submitting to an examination conducted by the board shall, in addition to the application fee, pay a nonrefundable examination fee as set annually by the board.
    3. The license shall be of the type and kind agreed upon by the board.
  2. The secretary of the board shall keep a separate register showing the names and addresses of all dental hygienists so licensed by the board.
  3. The board is authorized in its discretion to issue a license by criteria approval to any dental hygienist who:
    1. Is licensed and has, pursuant to that license, actively engaged in practice for three (3) years or more in another state or states;
    2. Is a graduate of and has received a diploma from a dental hygiene program accredited by the American Dental Association's Commission on Dental Accreditation that provides a minimum of two (2) academic years of dental hygiene curriculum and that may be completed in a period of time less than two (2) years, in or through an institution of higher education accredited by an agency recognized by the United States department of education to offer college-level programs; and
    3. Submits satisfactory evidence of good moral character and professional competence, including a certificate to that effect from the licensing or registration board from all states in which the applicant has held a license, upon payment of a nonrefundable fee as set by the board.
  4. The board is authorized in its discretion to issue a limited license for educational purposes to any dental hygienist who is duly licensed or registered to practice in any other state, who meets the requirements of the board and who submits satisfactory evidence of good moral character and professional competence, including a certificate to that effect from the licensing or registration board from all states in which the applicant has held a license, upon payment of a nonrefundable fee as set by the board.
  5. The board may in its discretion revoke a license to any person who fails to register the license with the board within ninety (90) days following notification of licensure.

Acts 1957, ch. 32, § 15; 1976, ch. 497, § 4; 1978, ch. 824, § 11; 1981, ch. 99, § 10; T.C.A., § 63-543; Acts 1984, ch. 608, § 3; 1988, ch. 635, §§ 14-16; 1989, ch. 523, §§ 13-15; 1990, ch. 1031, §§ 14-18; 1999, ch. 291, §§ 1, 2.

Cross-References. Licensure, §§  63-1-10363-1-107.

63-5-115. Employment of and practice by hygienists and assistants.

  1. A duly licensed and registered dentist may employ licensed and registered dental hygienists, registered dental assistants and practical dental assistants. Such licensed and registered dental hygienists may practice as authorized in this section or § 63-5-108 only in the office of and under the direct and/or general supervision of a licensed and registered dentist, in authorized public health programs or at other locations otherwise authorized by this chapter. Such registered and/or practical dental assistants may practice as authorized in this section or § 63-5-108 only in the office of and under the direct supervision of a licensed and registered dentist except in authorized public health programs. No provisions in this chapter shall be construed as authorizing any licensed and registered dental hygienists, registered dental assistants or practical dental assistants to practice as such except as provided in this section.
  2. Definitions.
    1. Direct Supervision.  As used in this chapter regarding supervision of licensed and registered dental hygienists or registered dental assistants, “direct supervision” means the continuous presence of a supervising dentist within the physical confines of the dental office when licensed and registered dental hygienists or registered dental assistants perform lawfully assigned duties and functions;
    2. General Supervision.  As used in this chapter, “general supervision” is defined as those instances when the dentist is not present in the dental office or treatment facility while procedures are being performed by the dental hygienist, but the dentist has personally diagnosed the condition to be treated, has personally authorized the procedures being performed and will evaluate the performance of the dental hygienist.
  3. Licensed and registered dental hygienists and registered dental assistants are specifically permitted to participate unsupervised in educational functions involving organized groups or health care institutions regarding preventive oral health care. Dental hygienists are permitted to participate in health screenings and similar activities; provided, that no remuneration is given by the organized group to any hygienist or the hygienist's employer for participating in these activities.
    1. Settings in which licensed and registered hygienists may engage in the provision of preventive dental care under the general supervision of a dentist through written protocol include nursing homes, skilled care facilities, nonprofit clinics and public health programs. Dental hygienists licensed and registered pursuant to this chapter are specifically permitted to render such preventive services as authorized in § 63-5-108 or by regulation of the board, as prescribed by the supervising dentist under a written protocol. Dental hygienists rendering such services shall be under the general supervision of a licensed dentist as specified in a written protocol between the supervising dentist and the hygienist which must be submitted in advance to the board. No dentist may enter into a written protocol with more than three (3) dental hygienists at any one time nor may any hygienist be engaged in a written protocol with more than three (3) dentists at any one time. The supervising dentist must process all patient billings. Each written protocol will be valid for a period of two (2) years at which time it must be renewed through resubmission to the board. Should a dentist cease to be the employer/supervisor of a dental hygienist where a written protocol is in force and on file with the board, the dentist must notify the board within ten (10) working days by certified mail, return receipt requested or electronic mail that the written protocol is no longer in force.
    2. Licensed and registered dental hygienists working under written protocol, in addition to those requirements enumerated under the general supervision as authorized by § 63-5-108(c)(5), must have actively practiced as a licensed dental hygienist for at least five (5) years and have practiced two thousand (2,000) hours in the preceding five (5) years or taught dental hygiene courses for two (2) of the proceeding three (3) years in a dental hygiene program accredited by the American Dental Association's Commission on Dental Accreditation and completed six (6) hours of public health continuing education within the past two (2) years; provided, that, after satisfying the requirement of this subsection (d), in subsequent years the hygienist may work on a part-time basis.
    3. Each written protocol, required for off-site practice under general supervision, shall be submitted to the board by certified mail, return receipt requested and shall include at a minimum:
      1. The name, address, telephone number and license number of the employer (supervising) dentist;
      2. The name, address, telephone number and license number of the dental hygienist;
      3. The name, address, telephone number and other pertinent identification from all locations where the dental hygiene services are to be performed; and
      4. A statement signed by the dentist that the dentist and the dental hygienist that meets all minimum standards for general supervision as well as those required for practice under a written protocol as stipulated in this section and § 63-5-108.
    4. The board will receive each written protocol submitted and keep those on file which meet the minimum requirements enumerated in subdivision (d)(3). Those received by the board and determined not to be complete shall be returned to the submitting dentist within thirty (30) days of receipt with a request for the additional information required. The dentist may then resubmit an amended written protocol to the board.
  4. Teledentistry shall not alter or amend the supervision requirements or procedures authorized for licensed and registered dental hygienists or registered dental assistants. Any licensed and registered dental hygienist who, under the supervision of a dentist, assists the dentist in providing dental health services or care using teledentistry is only authorized to perform those services that the dental hygienist is authorized to perform during an in-person patient encounter under general supervision. Services provided by registered dental hygienists through teledentistry should be provided under written protocol in accordance with subsection (d).

Acts 1957, ch. 32, § 16; 1978, ch. 824, § 12; T.C.A., § 63-544; Acts 1988, ch. 635, § 17; 1990, ch. 1031, § 19; 1998, ch. 847, §§ 4, 5; 1999, ch. 405, § 3; 2012, ch. 945, §§ 2, 3; 2016, ch. 918, § 2.

63-5-116. Penalties for unauthorized practice by hygienist or assistant.

  1. The board may revoke or suspend the license of, assess a civil penalty for each separate violation against or otherwise lawfully discipline any dentist who permits any licensed and registered dental hygienist, registered dental assistant and/or practical dental assistant operating under that dentist's supervision to perform any acts or services other than those authorized by this chapter.
  2. The board may also revoke or suspend the license or registration of, assess a civil penalty for each separate violation against or otherwise lawfully discipline any dental hygienist or dental assistant violating any of the provisions of this chapter.

Acts 1957, ch. 32, § 17; 1978, ch. 824, § 13; 1981, ch. 99, § 11; T.C.A., § 63-545; Acts 1990, ch. 1031, §§ 20, 21; 1999, ch. 405, § 4; 2001, ch. 330, § 7.

Cross-References. Discipline generally, § 63-5-124.

Penalties, §§ 63-1-123, 63-1-134.

63-5-117. License renewal.

  1. Each licensed dentist shall pay an annual renewal fee to the board, payable in advance. The secretary of the board shall notify each licensed dentist that such renewal fee is due.
  2. Each licensed dental hygienist shall pay an annual renewal fee to the board as set by the board, payable in advance, for the ensuing year on or before December 31 of each year, which fees shall become part of the fees of the board and handled in the same manner as other fees of the board. The secretary shall notify all licensed dental hygienists prior to December 31 of each year that the fee is due.
  3. Each registered dental assistant shall pay a biennial renewal fee to the board as set by the board, payable in advance, for the ensuing two (2) years on or before December 31 of each even year, which fees shall become a part of the fees of the board to be handled in the same manner as other fees of the board. The secretary shall notify all registered dental assistants prior to December 31 of each even year that such fee is due.
  4. When any licensed dentist, licensed dental hygienist or registered dental assistant fails to register and pay the registration fee within sixty (60) days after registration becomes due as provided in this section, the license or certificate of such person shall be automatically revoked at the expiration of sixty (60) days after the registration was required, without further notice or hearing. Any person whose license or certificate is automatically revoked as provided in this subsection (d) may make application in writing to the Tennessee board of dental examiners for the reinstatement of such license or certificate, and, upon good cause being shown, the board in its discretion may reinstate such license or certificate upon payment of all past-due renewal fees and upon the further payment of a sum as set by the board.
    1. Notwithstanding any provision of this chapter to the contrary, the division, with the approval of the commissioner, shall establish a system of license renewals at alternative intervals that will allow for the distribution of the license workload as uniformly as is practicable throughout the calendar year. Licenses issued under the alternative method are valid for twenty-four (24) months and shall expire on the last day of the last month of the license period; however, during a transition period, or at any time thereafter when the board determines that the volume of work for any given interval is unduly burdensome or costly, either the licenses or renewals, or both of them, may be issued for terms of not less than six (6) months nor more than eighteen (18) months. The fee imposed for any license under the alternative interval method for a period of other than twenty-four (24) months shall be proportionate to the annual fee and modified in no other manner, except that the proportional fee shall be rounded off to the nearest quarter of a dollar (25¢).
    2. No renewal application will be accepted after the last day of the month following the license expiration date under the alternative method authorized in subdivision (e)(1).

Acts 1957, ch. 32, § 18; 1965, ch. 216, § 1; 1969, ch. 29, § 7; 1976, ch. 406, § 5; 1976, ch. 497, § 3; T.C.A., § 63-546; Acts 1985, ch. 71, §§ 3-6; 1989, ch. 360, §§ 20-22; 1989, ch. 523, §§ 16-19; 1990, ch. 1031, §§ 22, 23.

Cross-References. Registration, § 63-1-108.

63-5-118. Certificate to licensee removing from state.

Anyone who is licensed or certified and is an ethical practitioner of dentistry or dental hygiene in the state and who is of good moral character, who shall desire to change residence to another state, territory, the District of Columbia or to a foreign country, upon application to the board, shall receive a special certificate or endorsement signed by the secretary and bearing the seal of the board, which shall attest such facts, the date of licensure or certification and such other facts as may be deemed necessary. The nonrefundable fee for each certificate or endorsement shall be set by the board.

Acts 1957, ch. 32, § 19; 1973, ch. 166, § 5; 1978, ch. 824, § 14; T.C.A., § 63-547; Acts 1989, ch. 523, § 20.

Cross-References. Certificate of fitness for license in other state, § 63-1-118.

63-5-119. Disbursement of fees, fines and penalties — Operating expenses — Compensation — Conference attendance.

  1. All fees coming into the hands of the board, including examination fees, renewal fees, fines and penalties, shall be paid by the board to the state treasurer and become part of the general fund. The commissioner of finance and administration shall make allotments out of the general fund of at least eighty-five percent (85%) of the funds paid into the general fund by the board for the proper expenditures of the board, and no expenditure shall be made by the board until allotment for the expenditure has been made by the commissioner. Such allotments for the operation of the board shall be disbursed under the general budgetary laws of the state.
  2. The members of the board shall receive as compensation the sum of one hundred dollars ($100) for each day they are actually engaged in the duties of the board in Tennessee, and all necessary expenses incurred in attending the meetings of the board. All reimbursements for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
  3. All fines, fees and penalties provided for in this chapter, whether imposed or required by the board or assessed or imposed by a court, judge or jury, shall belong to and be paid to the board.
  4. The secretary of the board shall, in addition to the per diem provided by this section, receive a salary not to exceed five hundred dollars ($500) per month as set annually by the board.
    1. The board may select one (1) or more of its members to attend, at the expense of the board, annual meetings of such agencies and associations as the Southern Regional Testing Agency, American Association of Dental Examiners and the Southern Conference of Dental Deans and Examiners, where attendance is necessary and important to the proper functioning of the board.
    2. The members of the board may receive as compensation for attendance at such annual meetings the sum of fifty dollars ($50.00) for each day they are actually engaged in the duties of the board at such annual meetings.

Acts 1957, ch. 32, § 20; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1969, ch. 29, § 8; 1976, ch. 806, § 1(112); 1978, ch. 824, § 15; T.C.A., § 63-548; Acts 1994, ch. 666, § 1.

Cross-References. Disbursement of fine and penalties, operating expenses, § 63-1-113.

Funds, deposits and disbursements, § 63-1-137.

63-5-120. Exhibit of license.

The holder of the license to practice dentistry or dental hygiene shall, at all times, upon request, exhibit such license along with the annual renewal receipt to any of the members of the board, or its authorized agent, or to any officer of the law.

Acts 1957, ch. 32, § 21; 1969, ch. 29, § 9; T.C.A., § 63-549; Acts 1990, ch. 1031, § 24.

63-5-121. Dental practice to be owned by dentist — Exception for death or disability.

  1. Except where dental services are regularly made available to employees by their employer or where dental services are being provided by an official agency of the state government or any subdivision, any nonprofit organization or hospital, it is unlawful:
    1. For any licensed dentist to practice dentistry as an employee of any person or other entity not engaged primarily in the practice of dentistry; or
    2. For an owner of an active dental practice to be other than a dentist duly licensed to practice in this state.
  2. In the event that a dentist is deceased or becomes substantially disabled, the estate or agent of such dentist may employ another dentist or dentists for a period of not more than two (2) years to provide services to patients until the practice can be sold or otherwise disposed of or closed.
    1. Nothing in this section shall be construed to prohibit a charitable clinic from employing or contracting with a dentist; provided, that the contractual relationship between the dentist and the charitable clinic is evidenced by a written contract, job description, or documentation, containing language that does not restrict the dentist from exercising independent professional judgment in diagnosing and treating patients.
    2. For the purposes of this subsection (c), the term “charitable clinic” means an entity that meets the following standards:
      1. Has received a determination of exemption from the internal revenue service under 26 U.S.C. § 501(c)(3) or is a distinct part of an entity that has received such a determination of exemption;
      2. Has clinical facilities located in this state;
      3. Has a primary mission to provide health care or dental care services to low-income, uninsured, or underserved individuals;
      4. Provides one or more of the following services for free or at a discounted rate:
        1. Medical care;
        2. Dental care;
        3. Mental health care; or
        4. Prescription medications;
      5. Utilizes volunteer healthcare professionals and nonclinical volunteers; and
      6. Is not required to be licensed under § 68-11-202(a)(1).

Acts 1957, ch. 32, § 22; 1981, ch. 99, § 12; T.C.A., § 63-550; Acts 2002, ch. 771, §§ 9, 10; 2016, ch. 766, § 1.

63-5-122. Drug prescriptions.

  1. Licensed dentists of this state may dispense, prescribe or otherwise distribute drugs rational to the practice of dentistry, and any prescriptions shall be written in accordance with state and federal drug laws.
  2. Licensed pharmacists of this state may fill prescriptions of licensed dentists of this state for any drug necessary or proper to the practice of dentistry.
  3. Any handwritten prescription order for a drug prepared by a dentist who is authorized by law to prescribe a drug must be legible so that it is comprehensible by the pharmacist who fills the prescription. The handwritten prescription order must contain the name of the prescribing dentist, the name and strength of the drug prescribed, the quantity of the drug prescribed, handwritten in letters or in numerals, instructions for the proper use of the drug, and the month and day that the prescription order was issued, recorded in letters or in numerals or a combination thereof. The prescribing dentist must sign the handwritten prescription order on the day it is issued, unless it is a standing order issued in a hospital, a nursing home or an assisted care living facility as defined in § 68-11-201.
  4. Any typed or computer-generated prescription order for a drug issued by a dentist who is authorized by law to prescribe a drug must be legible so that it is comprehensible by the pharmacist who fills the prescription order. The typed or computer generated prescription order must contain the name of the prescribing dentist, the name and strength of the drug prescribed, the quantity of the drug prescribed, recorded in letters or in numerals, instructions for the proper use of the drug, and the month and day that the typed or computer generated prescription order was issued, recorded in letters or in numerals or a combination thereof. The prescribing dentist must sign the typed or computer generated prescription order on the day it is issued, unless it is a standing order issued in a hospital, nursing home or an assisted care living facility as defined in § 68-11-201.
  5. Nothing in this section shall be construed to prevent a dentist from issuing a verbal prescription order.
    1. All handwritten, typed or computer-generated prescription orders must be issued on either tamper-resistant prescription paper or printed utilizing a technology that results in a tamper-resistant prescription that meets the current centers for medicare and medicaid service guidance to state medicaid directors regarding § 7002(b) of the United States Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007, P.L. 110-28, and meets or exceeds specific TennCare requirements for tamper-resistant prescriptions.
    2. Subdivision (f)(1) shall not apply to prescriptions written for inpatients of a hospital, outpatients of a hospital where the doctor or other person authorized to write prescriptions writes the order into the hospital medical record and then the order is given directly to the hospital pharmacy and the patient never has the opportunity to handle the written order, a nursing home or an assisted care living facility as defined in § 68-11-201 or inpatients or residents of a mental health hospital or residential facility licensed under title 33 or individuals incarcerated in a local, state or federal correctional facility.
  6. [Deleted by 2018 amendment.]

Acts 1957, ch. 32, § 23; 1978, ch. 824, § 16; T.C.A., § 63-551; Acts 2004, ch. 678, § 4; 2005, ch. 12, § 2; 2008, ch. 1035, §§ 3, 9; 2010, ch. 795, §§ 2, 14; 2013, ch. 74, § 3; 2018, ch. 883, § 4.

Compiler's Notes. Acts 2004, ch. 678, § 1 provided that the title of the act, which amended subsection (c) and subsections (d) and (e), is and may be cited as the “Medication Error Reduction Act of 2004.”

Acts 2004, ch. 678, § 2 provided that it is the intent of the general assembly to create a uniform standard that health care providers must follow in issuing written or electronic prescription orders. This standard is intended to reduce medication related errors, which represent a major source of medical errors in the health care system. The general assembly finds that reducing medical errors will result in greater safety for patients as well as cost savings for the health care system in this state. By adopting these standards, the general assembly intends to promote medical safety for all patients who are issued drug prescriptions in this state.

Acts 2004, ch. 678, § 11 provided that nothing in the act shall be construed as limiting any practitioner’s or pharmacist’s ability to order the use of or distribute non-prescription drugs or devices otherwise in accordance with applicable law.

Acts 2004, ch. 678, § 12 provided that nothing in the act shall be construed as limiting any professional nurse’s ability to issue drugs in accordance with the provisions of § 63-7-124.

Acts 2004, ch. 678, § 13 provided that the department of health, division of health related boards and the board of pharmacy, are authorized to promulgate uniform rules to effect the purposes of this act in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The power and duty to enforce those rules shall be vested in the various boards that regulate health care providers affected by the act, in accordance with § 63-1-122 [repealed].

Acts 2004, ch. 678, § 14 provided that the act shall not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before July 1, 2004.

Acts 2010, ch. 795, § 8 provided that nothing in the act shall be construed as limiting any practitioner's or pharmacist's ability to order the use of or distribute non-prescription drugs or devices otherwise in accordance with applicable law.

Acts 2010, ch. 795, § 9 provided that §§ 1-7 of the act shall not apply to prescriptions written for inpatients of a hospital, outpatients of a hospital where the physician or other person authorized to write prescriptions, writes the order into the hospital medical record and the patient or patient's agent or representative never has the opportunity to handle the written order, a nursing home, or an assisted care living facility as defined in § 68-11-201 or inpatients or residents of a mental health hospital or residential facility licensed under title 33 or individuals incarcerated in a local, state or federal correctional facility.

Acts 2010, ch. 795, § 10 provided that nothing in the act shall be construed as limiting any professional nurse's ability to issue drugs in accordance with the provisions of § 63-7-124.

Acts 2010, ch. 795, § 11 provided that the department of health, division of health related boards and the board of pharmacy, are authorized to promulgate uniform rules to effect the purposes of the act in accordance with title 4, chapter 5. The power and duty to enforce those rules shall be vested in the various boards that regulate healthcare providers affected by the act, in accordance with § 63-1-122 [repealed].

Acts 2010, ch. 795, § 19 provided that the act shall not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before January 1, 2011.

Acts 2018, ch. 883, § 10 provided that the commissioner of health is authorized to promulgate rules to effectuate the purposes of the act. All rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in Tennessee Code Annotated, Title 4, Chapter 5.

Amendments. The 2018 amendment, effective January 1, 2019, deleted former (g) which read: “Any written, printed or computer-generated order for a Schedule II controlled substance prepared by a dentist who is authorized by law to prescribe a drug must be legibly printed or typed as a separate prescription order. The written, printed or computer-generated order must contain all information otherwise required by law. The prescribing dentist must sign the written, printed or computer-generated order on the day it is issued.”

Effective Dates. Acts 2018, ch. 883, § 12. January 1, 2019; provided that for rulemaking purposes the act took effect May 3, 2018.

63-5-123. [Repealed.]

Compiler's Notes. Former § 63-5-123 (Acts 1957, ch. 32, § 25; T.C.A., § 63-553; Acts 2002, ch. 771, § 11), concerning jury duty exemption for dentists, was repealed by Acts 2008, ch. 1159, § 7, effective January 1, 2009.

63-5-124. Grounds for denial, suspension or revocation of licenses — Examinations — Investigations of reports — Civil penalties — Costs — Oaths and subpoenas.

  1. The board has the power and it is its duty to deny, suspend, revoke or otherwise restrict or condition the license of, assess a civil penalty for each separate violation against or otherwise lawfully discipline the holder of any license to practice dentistry or any certificate to practice a dental specialty, any license to practice dental hygiene or practice as a registered dental assistant, whenever the licensee or certificate holder is guilty of violating any of the provisions of this chapter or of the following acts or offenses:
    1. Unprofessional, dishonorable or unethical conduct;
    2. A violation or attempted violation, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, this chapter or any lawful order of the board issued pursuant thereto or any criminal statute of this state;
    3. Making false or misleading statements or representations, being guilty of fraud or deceit in obtaining admission to practice or in being guilty of fraud or deceit in the practice of dentistry or dental hygiene or as a registered dental assistant;
    4. Gross health care liability or a pattern of continued or repeated health care liability, ignorance, negligence or incompetence in the course of professional practice;
    5. Habitual intoxication or personal misuse of any drugs or the use of intoxicating liquors, narcotics, controlled substances, controlled substance analogues or other drugs or stimulants, such as, but not limited to, nitrous oxide sedation, in such manner as to adversely affect the person's ability to practice dentistry, dental hygiene or as a registered dental assistant;
    6. Conviction of a felony, conviction of any offense under state or federal drug laws, or conviction of any offense involving moral turpitude. However, an action taken under this subdivision (a)(6) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 1, part 1 of this title;
    7. 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;
    8. Dispensing, prescribing or otherwise distributing any controlled substance or any other drug not in the course of professional practice, or not in good faith to relieve pain and suffering or not to cure an ailment, physical infirmity or disease;
    9. Engaging in the practice of dentistry, dental hygiene or as a registered dental assistant when mentally or physically unable to safely do so;
    10. Solicitation by agents or persons of professional patronage or profiting by the acts of those representing themselves to be agents of the licensee or the certificate holder;
    11. Division of fees or agreeing to split or divide fees received for professional services with any person for bringing or referring a patient;
    12. Conducting the practice of dentistry so as to permit directly or indirectly an unlicensed person to perform services or work that under this chapter can be done legally only by persons licensed to practice dentistry or dental hygiene or as a registered dental assistant;
    13. Professional connection or association with any person, firm or corporation in any manner in an effort to avoid and circumvent this chapter, or lending one's name to another for the illegal practice of dentistry by such person;
    14. Claiming to the public to be a specialist in some particular branch of dentistry without being certified by the board as such;
    15. Payment or acceptance of commissions in any form or manner on fees for professional services, references, consultations, pathological reports, radiographs, prescriptions or on other services or articles supplied to patients;
    16. Having work done by or obtaining work from a dental laboratory without issuing a written work order as provided in § 63-5-108;
    17. Giving of testimonials, directly or indirectly, concerning the supposed virtue of secret therapeutic agents or proprietary preparations, such as remedies, vaccines, mouth washes, dentifrices or other articles or materials that are offered to the public, claiming radical cure or prevention of diseases by their use;
    18. Any other unprofessional or unethical conduct that may be specified by the board by the means of rules and regulations duly published and promulgated by the board or the violation of any provision of this chapter;
      1. A dentist shall not, on behalf of that dentist, that dentist's partner or associate or any other dentist affiliated with that dentist or that dentist's facility, use or participate in the use of any form of public communication containing a false, fraudulent, misleading or deceptive statement or claim;
      2. Moreover, the fact of promulgation of any forms of public communication covered or prohibited in this section or the rules and regulations promulgated hereunder shall be prima facie evidence that the dentist named either used or permitted the use of the public communication;
      3. A licensed dentist is authorized to use personal professional cards, appointment cards, announcements and related materials and appropriate signs and listings indicating the dentist's office and specialty in accordance with rules and regulations promulgated by the board;
    19. Dispensing, prescribing or otherwise distributing any controlled substance, controlled substance analogue or other drug to any person in violation of any law of the state or of the United States; or
    20. Disciplinary action against a person licensed to practice dentistry or dental hygiene or registered to practice as a dental assistant by another state or territory of the United States for any acts or omissions that would constitute grounds for discipline of a person licensed or registered 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 a violation of this section and shall be sufficient grounds upon which to deny, restrict or condition licensure/registration or renewal and/or discipline a person licensed in this state.
    1. In enforcing this section, the board shall, upon probable cause, have the authority to compel an applicant or license or certificate holder to submit to a mental and/or physical examination, by a designated committee of at least three (3) practicing physicians, including a psychiatrist where a question of mental condition is involved. The applicant or license or certificate holder may have an independent physical or mental examination, which examination report shall be filed with the board for consideration. The committee will submit a report of its findings to the board for use in any hearing that may thereafter ensue.
    2. The board may, upon finding of probable cause, require a dentist, dental hygienist or dental assistant to complete drug and/or alcohol treatment through a program designated by, or contracting with, the board. The board in its discretion is authorized to share information, interviews, reports, statements, memoranda or other data at the program director's request. Information shared between the board and the program director shall be deemed not to violate laws requiring confidentiality of investigations or peer review records protected under § 63-5-131.
  2. The board, on its own motion, may investigate any report indicating that a dentist, dental hygienist or dental assistant is or may be in violation of this chapter. Any dentist, dental hygienist, dental assistant, dental or dental related society or association, or any other person who in good faith reports to the board any information that a dentist, dental hygienist or dental assistant is or may be in violation of any provisions of this chapter, is not subject to suit for civil damages as a result thereof.
  3. In assessing a civil penalty pursuant to this chapter, the board should consider the following:
    1. The harm or potential harm of the violation to the public health and welfare;
    2. The extent to which the public was exposed to such harm or potential harm;
    3. The rate, duration and severity of the violations;
    4. The value of the penalty as a deterrent to future violations;
    5. Attempts by the violator to mitigate the harm to the public; and
    6. Such other specific criteria as the board may wish to establish by duly promulgated regulation.
  4. The board, pursuant to duly promulgated rules, may, whenever a final order is issued after a disciplinary contested case hearing that contains findings that a licensee or other person has violated any provision of this chapter, assess the costs directly related to the prosecution of the case, including investigatory costs, against the licensee or person.
    1. Any elected officer of the board or any duly appointed or elected chair has the authority to administer oaths to witnesses. Upon probable cause being established, the board, by a vote of two-thirds (2/3) of the members to which the board is entitled, may issue subpoenas for the attendance of witnesses and the production of documents and records.
    2. Service of a subpoena issued by the board shall be made by the sheriff of the county of residence of the licensee or person upon whom the subpoena is served.
      1. A licensee or person served by subpoena shall have thirty (30) days to request in writing a hearing before the board for the sole purpose of making a special appearance to quash or modify the subpoena. The subpoena for attendance of the person or the production of books and records shall be stayed until the board votes upon the request to quash or modify the subpoena. A majority vote of the members to which the board is entitled is required to quash or modify a subpoena.
      2. A motion to appeal from a decision by the board regarding a request to quash or modify a subpoena shall be made to the chancery court in Davidson County within fifteen (15) days of such decision.
    3. If any witness fails or refuses to obey a subpoena issued by it, the board is authorized to make application to any court of record in this state within the jurisdiction of which the witness is found or resides; and the court shall have power to attach the body of the witness and compel the witness to appear before the board and give testimony or produce books, records or papers as ordered. Any failure to obey the court order may be punished by the court issuing the order as a civil contempt.
    4. Each witness who appears before the board by order of the board shall receive for attendance the compensation provided by law for attendance of witnesses in a court of record, which shall be paid from the funds of the board in the same manner as all other expenses of the board are paid.

Acts 1957, ch. 32, § 26; 1963, ch. 107, § 3; 1969, ch. 29, § 10; 1978, ch. 824, § 18; 1981, ch. 99, § 13; T.C.A., § 63-554; Acts 1984, ch. 608, § 4; 1985, ch. 120, § 8; 1986, ch. 501, §§ 2, 3; 1988, ch. 635, § 18; 1990, ch. 1031, §§ 25, 26; 2000, ch. 927, § 6; 2001, ch. 330, §§ 8, 9; 2002, ch. 771, § 12; 2012, ch. 798, § 36; 2012, ch. 848, §§ 69, 70; 2018, ch. 745, § 25.

Compiler's Notes. Acts 2000, ch. 927, § 7 provided that any increased expenditures resulting from the amendment to this section by the act, which added subsections (e) and (f), shall be paid from funds allotted to the board of dentistry by the commissioner of finance and administration pursuant to § 63-5-119(a).

Amendments. The 2018 amendment added the second sentence in (a)(6).

Effective Dates. Acts 2018, ch. 745, § 46. July 1, 2018.

Cross-References. Confidentiality of public records, § 10-7-504.

Criminal background checks for health care providers, § 63-1-116.

Discipline relating to unauthorized practice, §§ 63-5-116, 63-5-126.

Grounds for license denial, suspension or revocation, § 63-6-214.

Payment of costs of investigation and prosecution, § 63-1-144.

Rules and regulations regarding sanctions for violations, § 63-1-146.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

Attorney General Opinions. The board of dentistry has authority to issue administrative subpoenas to compel the attendance of witnesses or the production of documents prior to the commencement of an administrative action, OAG 01-055, 2001 Tenn. AG LEXIS 47 (4/10/01).

63-5-125. Administrative procedures.

All proceedings for disciplinary action against a licensee or certificate holder under this chapter shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1957, ch. 32, § 27; 1981, ch. 99, § 14; T.C.A., § 63-555.

Law Reviews.

Review of Administrative Decisions by Writ of Certiorari in Tennessee (Ben H. Cantrell), 4 Memphis State U. L. Rev. 19.

63-5-126. Enjoining unlawful practice.

  1. The board, in addition to the powers and duties expressly granted by this chapter in the matter of suspension or revocation of a license and in the matter of the refusal to issue a certificate, is authorized and empowered to petition any circuit or chancery court having jurisdiction to enjoin any person who is practicing or attempting to practice dentistry or dental hygiene without possessing a valid license to so practice and to enjoin any person, firm or corporation from performing any act or rendering any service that constitutes the practice of dentistry or dental hygiene as defined in § 63-5-108. No injunction bond shall be required of the board.
  2. Jurisdiction is conferred upon the circuit and chancery courts of the state to hear and determine such causes as chancery causes and to exercise full and complete jurisdiction in such injunctive proceedings.

Acts 1957, ch. 32, § 28; T.C.A., § 63-556; Acts 1990, ch. 1031, § 27.

Cross-References. Enjoining violations, § 63-1-121.

NOTES TO DECISIONS

1. Constitutionality.

Imposition of fine of $550 and imprisonment of 110 days for violation of injunction prohibiting defendant from illegally practicing dentistry did not violate Tenn. Const. art. VI, § 14, where consent decree signed by defendant and his attorney stipulated that 11 separate violations of injunction were involved and that defendant was fined $50.00 and sentenced ten days for each violation thereof. State Board of Dental Examiners v. Talley, 185 Tenn. 83, 203 S.W.2d 364, 1947 Tenn. LEXIS 303 (1947).

2. Violation of Injunction as Contempt.

Injunction restraining person from unlawfully practicing dentistry was in furtherance of criminal laws and contempt of such injunction was criminal rather than civil. Hooper v. State ex rel. Nichol, 205 Tenn. 134, 325 S.W.2d 565, 1959 Tenn. LEXIS 348 (1959).

Criminal court has jurisdiction of proceeding for contempt of injunction prohibiting unlawful practice of dentistry. Hooper v. State ex rel. Nichol, 205 Tenn. 134, 325 S.W.2d 565, 1959 Tenn. LEXIS 348 (1959).

Contempt proceedings against defendant who violated injunction against unlawful practice of dentistry were proper even though judgment finding guilty of unlawful practice was reversed since such judgment was voidable only rather than void. Hooper v. State ex rel. Nichol, 205 Tenn. 134, 325 S.W.2d 565, 1959 Tenn. LEXIS 348 (1959).

63-5-127. District attorneys general to assist board.

The board at all times has the power to call upon the district attorneys general for the state in the various districts to assist the board. It is the duty of all district attorneys general throughout the state to assist the board, upon its request, in any suit for injunction or prosecution instituted by the board without charge or additional compensation to the district attorneys general.

Acts 1957, ch. 32, § 29; T.C.A., § 63-557.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. L. Rev. 477.

63-5-128. Criminal penalties.

  1. Any person who violates any provision of § 63-5-107(a) commits a Class B misdemeanor.
  2. After being convicted of any violation of § 63-5-107(a), any person who again violates § 63-5-107(a) commits a Class E felony.
  3. Any person who has been enjoined by a court of competent jurisdiction from performing any acts or rendering any services that constitute the practice of dentistry as defined in § 63-5-108, who thereafter willfully violates the terms of the injunction by again performing such acts or rendering such services, commits a Class E felony.

Acts 1957, ch. 32, § 30; T.C.A., § 63-558; Acts 1989, ch. 591, §§ 82, 83, 112; 1991, ch. 143, § 3.

Cross-References. Enjoining violations, § 63-1-121.

Penalties, §§  63-1-123, 63-1-134.

Penalty for Class B misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 6A Tenn. Juris., Constitutional Law, § 58; 20 Tenn. Juris., Physicians and Surgeons, § 5.

NOTES TO DECISIONS

1. Constitutionality.

Appellee's contention that he has been deprived of equal protection of the laws or of due process simply because the criminal sanctions prescribed for violation of the particular licensing laws regulating him as a dentist differ in some respects from penalties provided for other professional groups was without merit. State v. Blockman, 615 S.W.2d 672, 1981 Tenn. LEXIS 430 (Tenn. 1981).

Podiatrists, chiropractors, optometrists, osteopaths, psychologists, veterinarians, physical therapists, dispensing opticians, nursing home administrators and speech pathologists are not all members of the same class and thus there is no requirement that they receive identical treatment, either civilly or criminally, under the licensure laws, even though all are generally subject to the regulation and supervision of the board for the healing arts. State v. Blockman, 615 S.W.2d 672, 1981 Tenn. LEXIS 430 (Tenn. 1981).

63-5-129. Retirement.

Any person licensed to practice dentistry or dental hygiene in this state who has retired or may hereafter retire from such practice in this state is not required to register as required by this chapter; provided, that such person files with the board an affidavit on a form to be furnished by the board, which affidavit states the date on which such person retired from such practice and other such facts as tend to verify such retirement as the board deems necessary. If such person thereafter reengages in the practice of dentistry or dental hygiene in this state, such person shall apply for registration with the board as provided by this chapter.

Acts 1965, ch. 216, § 2; 1978, ch. 824, § 19; T.C.A., § 63-559; Acts 1990, ch. 1031, § 28.

Cross-References. Retirement, §  63-1-111.

63-5-130. Armed forces or public health service.

Any person licensed to practice dentistry or dental hygiene in this state who is an officer in the commissioned dental corps of the army, navy, air force or the public health service of the United States shall not be required to register as required in this chapter. Such person shall file with the board an affidavit on a form to be furnished by the board, which affidavit shall state the date on which such person entered the army, navy, air force or the public health service of the United States and such other facts as tend to verify such service as the board shall deem necessary. When such person resigns or is honorably discharged from one (1) of the aforementioned services and engages in the practice of dentistry or dental hygiene in this state or any other state, such person shall, within thirty (30) days, apply for registration with the board as provided for in this chapter.

Acts 1965, ch. 216, § 3; T.C.A., § 63-560.

63-5-131. Immunity of peer review committee from liability — Confidentiality.

  1. As used in this section, “peer review committee” or “committee” means any committee, board, commission or other entity constituted by any statewide dental association or local dental society for the purpose of receiving and evaluating dental acts of other dentists or dental auxiliary personnel or their personal conduct as it relates to the performance of their professional duties.
  2. Any dentist who serves on any peer review committee or on any other committee is immune from liability with respect to any action taken by the dentist in good faith and without malice as a member of such committee, board, commission or other entity.
  3. Dentists, dental hygienists and registered dental assistants, members of boards of directors or trustees of any publicly supported or privately supported hospital or other such provider of health care, or any other individual appointed to any committee, as such term is described in subsection (a), are immune from liability to any patient, individual or organization for furnishing information, data, reports or records to any such committee or for damages resulting from any decision, opinions, actions and proceedings rendered, entered or acted upon by such committees undertaken or performed within the scope or functions of the duties of such committees, if made or taken in good faith and without malice and on the basis of facts reasonably known or reasonably believed to exist.
  4. All information, interviews, reports, statements, memoranda or other data furnished to any such peer review committee or other entity and any findings, conclusions or recommendations resulting from the proceedings of such committee or other entity are privileged. The records and proceedings of any such committee or other entity are confidential and shall be used by such committee or other entity and the members thereof only in the exercise of the proper functions of the committee or other entity and shall not become public record nor be available for court subpoena or discovery proceedings. Nothing contained in this subsection (d) applies to records, documents or information otherwise available from original sources, such records, documents or information not to be construed as immune from discovery or use in any civil proceeding solely due to presentation to the committee.

Acts 1974, ch. 656, § 1; T.C.A., § 63-561; Acts 1985, ch. 71, § 7; 1990, ch. 1031, § 29; 1992, ch. 859, § 2.

Cross-References. Confidentiality of public records, § 10-7-504.

63-5-132. Inactive licenses to perform pro bono services.

The board of dentistry shall establish by rule an inactive license category that allows dentists to perform services without compensation only for those persons receiving services from organizations that have received a determination of exemption under § 501(c)(3) of the Internal Revenue Code. Such inactive license category shall not authorize any other practice of dentistry.

Acts 1997, ch. 345, § 2.

Compiler's Notes. Section 501(c)(3) of the Internal Revenue Code, referred to in this section, is codified as 26 U.S.C. § 501(c)(3).

63-5-133. Dental referral service.

  1. A dental referral service shall not participate in the advertising of, or operate, a dental referral service unless it meets all of the following requirements:
    1. Its patient referrals result from patient-initiated responses to the dental referral service's advertising;
    2. It discloses to any prospective patient in its advertising that participating dentists have paid a fee for participation in the service;
    3. It does not impose a fee on participating dentists dependent on the number of referrals or amount of professional fees paid by the patient to the dentist; and
    4. It duly registers with the board, providing all information reasonably required by the board.
  2. Participating dentists shall not enter into an agreement to accept for dental care or treatment a person referred or recommended by a dental referral service unless the dental referral service meets all the requirements of subsection (a). Participating dentists shall charge no more than their usual and customary fees to any patient so referred or recommended.
    1. “Dental referral service” is a person, firm, partnership, association, corporation, agent or employee of any of the foregoing that engages in any business or service for profit that in whole or in part includes the referral or recommendation of persons to a dentist for any form of dental care or treatment;
    2. “Participating dentist” is a dentist duly licensed under this chapter who has paid a fee to a dental referral service in order to be included in its referral service.
  3. A dental referral service that advertises shall include in each advertisement legible or audible language, or both, a disclaimer containing all the following statements or information:
    1. The advertisement is paid for by participating dentists who have paid a fee to participate; and
    2. No representation is made about the quality of the dental services to be performed or expertise of the participating dentists, and that participating dentists are not more or less qualified than dentists who are not participating in the service.
  4. Dental referral service advertisements shall not do any of the following:
    1. Advertise or solicit patients in a manner that contains a false, fraudulent, misleading or deceptive statement in any material respect;
    2. Publish or circulate, directly or indirectly, any false, fraudulent, misleading or deceptive statement as to the skill or methods of practice of any participating dentist;
    3. Contain a statement or make a recommendation that the dental referral service provides referrals to the most qualified dentists or dental practice; or
    4. Advertise a review process or a screening that misleads the public into thinking a participating dentist has obtained special recognition or joined a selective group of licensed dentists by being a participating dentist in the dental referral service.

Acts 1998, ch. 1025, § 1.

Cross-References. Advertisement pertaining to board certification and specialty, §  63-1-145.

63-5-134. Special volunteer license for practice in free health clinic — Exemption from fees — Renewal.

A dentist or a dental hygienist licensed pursuant to this chapter under a special volunteer license who is a medical practitioner, as defined by § 63-1-201, engaged in practice at a free health clinic shall not be subject to license fees under this chapter. The board of dentistry may issue a special volunteer license, as such license is defined in § 63-1-201, to qualified applicants without fee or charge. Such license shall be for a period of two (2) years and may be renewed on a biennial basis.

Acts 2004, ch. 579, § 4.

Chapter 6
Medicine and Surgery

Part 1
Board of Medical Examiners

63-6-101. Creation — Composition — Administrative support.

    1. There shall be a board to be known as the board of medical examiners, referred to in this chapter as the “board,” to consist of twelve (12) members. Nine (9) members shall be duly licensed physicians, each of whom must meet the following qualifications:
      1. Graduation from a medical school whose curriculum is substantially similar to, and whose educational standards are as high as that of, the medical department of the University of Tennessee, as published at the time of its extant catalogue; and
      2. Not less than six (6) years experience in the practice of either medicine or surgery or both.
    2. Three (3) members shall be nonphysicians who are consumers of health care and who neither own nor have any financial or other interest in any health care facility or business or school of medicine or other allied health care practitioner educational program and who shall represent the public at large.
    3. It shall be the board's duty to examine the qualifications of all applicants for certification of fitness to practice medicine or surgery in this state, to conduct disciplinary hearings, and to make such rules and regulations as are necessary to carry out and make effective this chapter. Any rules and regulations promulgated by the board shall comply with all requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. No member shall be employed by or be a member of the governing body of, or have a financial interest in, any medical school, college or university of the state or of any school, college or university in which allied health care practitioners who are under the regulation of the board receive their qualifying education.
    4. The board is authorized to issue advisory private letter rulings to any affected licensee who makes such a request regarding any matters within the board's primary jurisdiction. Such private letter ruling shall only affect the licensee making such inquiry and shall have no precedential value for any other inquiry or future contested case to come before the board. Any dispute regarding a private letter ruling may, if the board chooses to do so, be resolved pursuant to the declaratory order provisions of § 4-5-223.
  1. The board shall receive administrative support from the division of health related boards in the department of health, referred to as the “division” in this chapter.

Acts 1901, ch. 78, § 2; Shan., § 3096a14; Code 1932, § 6919; Acts 1945, ch. 181, § 1; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; mod. C. Supp. 1950, § 6919; T.C.A. (orig. ed.), § 63-601; Acts 1982, ch. 905, § 1; 1984, ch. 937, § 26; 1993, ch. 404, § 1; 1996, ch. 1043, § 1.

Compiler's Notes. The regulatory board created by this section is attached to the division of health related boards in the department of health. See §§ 63-1-13163-1-133 and 68-1-101.

The board of medical examiners, created by this section, terminates June 30, 2023. See §§ 4-29-112, 4-29-244.

Cross-References. Abortion, title 39, ch. 15, part 2.

Health maintenance organizations exempt from chapter, § 56-32-121.

Liability of professional societies, title 62, ch. 50, part 1.

Prevention of HIV transmission, rulemaking authority, § 68-11-222.

Regulation of health and related facilities, title 68, ch. 11, part 2.

State examining boards, general provisions, title 4, ch. 19.

Law Reviews.

Report on Administrative Law to the Tennessee Law Revision Commission, 20 Vand. L. Rev. 777.

Uncovering the Silent Victims of the American Medical Liability System, 67 Vand. L. Rev. 151 (2014).

United States v. Caronia: How True Does “Truthful” Have to Be?, 67 Vand. L. Rev. En Banc 157 (2014).

Attorney General Opinions. Even though the Tennessee Medical Practice Act contains no express language authorizing the Board of Medical Examiners to regulate the facilities at which physicians practice, unless provided otherwise by law or Board regulation, individual physician practice requirements and standards apply to a physician's practice of medicine in any setting, including a medical clinic, OAG 04-128 (8/11/04).

NOTES TO DECISIONS

1. Constitutionality.

The regulation of the practice of medicine is constitutional. O'Neil v. State, 115 Tenn. 427, 90 S.W. 627, 1905 Tenn. LEXIS 78, 3 L.R.A. (n.s.) 762 (1905).

This act has been repeatedly upheld and enforced by the Supreme Court. State ex rel. Campbelle v. Hobbs, 174 Tenn. 215, 124 S.W.2d 699, 1938 Tenn. LEXIS 82 (1939).

2. Board Members.

3. —Immunity.

Public policy requires absolute immunity for officials performing quasi-prosecutorial or quasi-judicial functions, at least where protections such as those provided by the federal Administrative Procedure Act are in place. The Tennessee Administrative Procedures Act, compiled in title 4, ch. 5 provides procedural safeguards for contested cases comparable to those provided by the corresponding federal law, 5 U.S.C. § 554 et seq.Watts v. Burkhart, 978 F.2d 269, 1992 U.S. App. LEXIS 27830 (6th Cir. Tenn. 1992).

4. Licensure.

Denial of medical licensure in Tennessee to an applicant was not inappropriate because the decision by the Tennessee Board of Medical Examiners that the applicant's long absence from direct patient care necessitated a formal assessment before the applicant could engage in the practice of emergency medicine in Tennessee was not unclear, arbitrary and capricious, or unsupported by substantial and material evidence. Perez v. Tenn. Bd. of Med. Examiners, — S.W.3d —, 2019 Tenn. App. LEXIS 336 (Tenn. Ct. App. July 3, 2019).

63-6-102. Appointment — Terms — Vacancies — Removal.

      1. The members of the board shall be appointed by the governor for terms of five (5) years' duration, which terms shall commence on May 1 and expire on April 30, five (5) years thereafter. All board members subsequently added to the board after May 2, 1993, shall be appointed so as to serve staggered terms of from one (1) to four (4) years, with one (1) member appointed to a one-year term, the second member appointed to a two-year term, the third member appointed to a three-year term, and the fourth member appointed to serve a four-year term.
      2. The members appointed by the governor in 1988 shall be appointed as follows:
        1. One (1) member shall be appointed to a one-year term expiring on April 30, 1989;
        2. One (1) member shall be appointed to a two-year term expiring on April 30, 1990;
        3. One (1) member shall be appointed to a three-year term expiring on April 30, 1991;
        4. One (1) member shall be appointed to a four-year term expiring on April 30, 1992; and
        5. One (1) member shall be appointed to a five-year term expiring on April 30, 1993.
    1. Members of the board shall, upon expiration of their terms of office, be eligible for reappointment to successive terms.
    2. In making appointments to the board, the governor shall give due regard to the geographic distribution of the membership of the board to assure, to the extent feasible, that all grand divisions of the state are adequately represented on the board.
    3. Board members may be selected from lists of qualified persons submitted to the governor by interested medical groups including, but not limited to, the Tennessee Medical Association. The governor shall consult with such groups to determine qualified persons to fill the positions on the board.
  1. All vacancies occurring on the board by reason of death or resignation shall be filled by the board itself for the unexpired term.
  2. In making appointments to the board, the governor shall, to the extent feasible, strive to ensure the full twelve-member board is composed of at least one (1) person who is sixty (60) years of age or older, one (1) person who is female and one (1) person who is an African-American.
  3. When a board member is absent without excuse from the board business portion of three (3) meetings within any twelve-month period of time, that member shall, after formal action by the board, be removed from office by the governor. A new member shall be appointed by the governor to serve out the remaining term of the member being replaced. An absence shall be deemed excused if it is caused by a health problem or condition verified in writing by a physician or by an accident or similar unforeseen tragedy or event immediately prior to or during the board meeting.

Acts 1901, ch. 78, § 3; Shan., § 3609a15; Code 1932, § 6920; T.C.A. (orig. ed.), § 63-602; Acts 1988, ch. 790, § 1; 1988, ch. 1013, § 43; 1993, ch. 404, §§ 2, 3; 2006, ch. 531, § 1; 2012, ch. 650, § 3.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

63-6-103. Officers — Quorum.

  1. The board is authorized to elect from its own members a president and secretary and to create such other officers as may be necessary for its efficient operations.
  2. For purposes of conducting administrative business and promulgating rules and regulations, seven (7) members shall constitute a quorum, and the board shall meet at least twice a year to conduct such administrative business. A majority vote of the members present at the business meetings shall be required to authorize board action on any board business. For purposes of contested case hearings and disciplinary matters, three (3) or more members shall constitute a quorum; and the board president is authorized, when it is deemed necessary, to split the board into panels of three (3) or more, each to conduct contested case hearings or disciplinary matters. A majority vote of the members present on any duly constituted panel shall be required to authorize board action in disciplinary matters and contested case hearings. The board president shall have the authority to appoint board members to serve, as necessary, on the panels regardless of the grand division from which the appointed member was chosen or the member's status as a physician or nonphysician member. The existence of a nonphysician board member creates no rights in any individual concerning the composition of any panel in any disciplinary matter or contested case hearing. Notwithstanding § 4-5-314(e) to the contrary, unavailability of a member of any panel before rendition of a final order shall not require substitution of another member unless the unavailability results in there being less than the quorum required by this section for contested case hearings or disciplinary matters. Any substitute required shall use any existing record and may conduct any further proceedings as is necessary in the interest of justice.

Acts 1901, ch. 78, § 4; Shan., § 3609a16; Code 1932, § 6921; Acts 1978, ch. 628, §§ 1, 2; T.C.A. (orig. ed.), § 63-603; Acts 1982, ch. 905, § 2; 1993, ch. 404, § 4; 1995, ch. 329, § 2; 2004, ch. 677, § 3.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

63-6-104. Meetings — Compensation — Disposition of receipts — Operating expenses.

  1. All regular meetings of the board shall be held upon the call of the president.
    1. The members of the board shall be entitled to a per diem of one hundred dollars ($100) for each day's service in attending meetings of the board, as provided in this section, and for conducting examinations for professional certificates and other administrative functions of the board and necessary expenses for traveling and subsistence while attending such meetings. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
    2. The board shall pay all money received by it into the state treasury and the commissioner of finance and administration shall make such allotments out of the general fund as the commissioner may deem proper for the necessary and proper expenses of the board, and no expenditure shall be made by the board unless and until such allotment has been made by the commissioner. Such allotment shall be disbursed under the general budgetary laws of this state.

Acts 1901, ch. 78, § 5; Shan., § 3609a17; mod. Code 1932, § 6922; Acts 1945, ch. 181, § 2; C. Supp. 1950, § 6922; Acts 1953, ch. 113, § 13; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1961, ch. 97, § 3; Acts 1975, ch. 355, § 13; 1976, ch. 806, § 1(113); T.C.A. (orig. ed.), § 63-604; Acts 1993, ch. 404, § 5.

63-6-105. Online registry for medical spas — Annual fee authorized.

  1. The board of medical examiners, in consultation with the board of osteopathic examination, shall establish and maintain an online registry for medical spas as defined in § 63-1-153, and, notwithstanding § 63-1-153, the registry shall include any physician-owned practice that advertises or holds itself out as a medical spa or a physician-owned practice that primarily engages in the performance of elective cosmetic medical services. The online registry shall include, at a minimum, the following information:
    1. The name and physical address of the medical spa;
    2. The name of the medical director or supervising physician, the medical license number of the director or supervising physician, and the designation as a medical doctor or doctor of osteopathy; and
    3. Certification information of the medical director or supervising physician as required by § 63-1-153(b) and (c).
  2. Any medical director or supervising physician who is responsible for or supervises a medical spa shall provide the board of medical examiners or the board of osteopathic examination with the information described in subsection (a); provided, that the medical director or supervising physician for a medical spa in existence prior to January 1, 2017, shall submit the required information to the appropriate board prior to that date.
  3. The board of medical examiners and the board of osteopathic examination shall post, in conspicuous size and type, notice of the requirements of this section on the website of each board.
  4. In order to offset the cost of implementing this section, the board of medical examiners, in consultation with the board of osteopathic examination, is authorized to promulgate rules to set an annual fee to be assessed on medical spas that are listed on the online registry.

Acts 2015, ch. 494, § 1; 2016, ch. 956, §§ 1, 2.

Part 2
General Provisions

63-6-201. License requirements.

  1. No person shall practice medicine in any of its departments within this state unless and until such person has obtained a license from the board created by § 63-6-101. The provisions in this chapter with reference to obtaining a license from the board do not apply to any person who on July 1, 1947, was duly and regularly licensed by law to practice medicine in any of its branches in this state.
    1. Notwithstanding the foregoing provisions visiting medical faculty licensed in a country other than the United States and employed full time by a college or university operating an accredited medical school in Tennessee are exempt from the requirement of a license; provided, that the visiting faculty member is a graduate of a medical school, a recognized medical authority approved by the board and the practice of the visiting faculty member is limited to and is incidental to the visiting faculty member's employment at an accredited medical school in Tennessee. Such person is entitled to engage in private practice; provided, that the person enrolls and satisfactorily participates in a three-year residency program approved by the board. No physician authorized under this subsection (b) to engage in private practice shall continue to engage in private practice of any form after a period of three (3) years unless such person meets all the requirements of licensure set forth in § 63-6-207.
    2. It is the responsibility of the dean of the medical school to apply to the board for an exemption for each such visiting faculty member. Such application for exemption shall be filed annually, and an individual applicant may not receive an exemption for a period in excess of two (2) years. It is also the responsibility of the above-named dean to notify the board upon termination of a visiting faculty member's responsibilities.
    3. The board may impose a fee to accompany each application for exemption.

Acts 1901, ch. 78, § 1; 1905, ch. 111, § 1; Shan., § 3609a13; Code 1932, § 6918; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; mod. C. Supp. 1950, § 6918; Acts 1977, ch. 285, § 1; T.C.A. (orig. ed.), § 63-605; Acts 1982, ch. 905, § 3; 1984, ch. 937, §§ 27, 28; 1989, ch. 523, §§ 39, 40; 1990, ch. 1055, § 2; 1994, ch. 732, § 1; 1995, ch. 329, § 5; 2003, ch. 262, § 1.

Cross-References. Assignment of insurance benefits to health care provider, § 56-7-120.

Courses in detection and treatment of child sexual abuse, § 49-7-117.

Exemption from barber licensing law, § 62-3-108.

Exemption from cosmetologists' licensing law, § 62-4-109.

Exemption from jury service, § 22-1-103.

Health maintenance organizations exempt from chapter, § 56-32-121.

Licensing by division of health related boards, §§ 63-3-10363-3-111.

Occupation tax on physicians, title 67, ch. 4, part 17.

Physician assistants, title 63, ch. 19.

Respiratory practitioners, title 63, ch. 27.

Training of physicians, pediatricians, psychiatrists, to include courses in detection and treatment of child sexual abuse, § 49-7-117.

Law Reviews.

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

NOTES TO DECISIONS

1. Chiropractors.

Chiropractor did not invade field of practice of medicine where he administered no drugs to patient and gave no treatment to any portion of patient's anatomy other than his spine. Ison v. McFall, 55 Tenn. App. 326, 400 S.W.2d 243, 1964 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1964), superseded by statute as stated in, Johnson v. Lawrence, 720 S.W.2d 50, 1986 Tenn. App. LEXIS 2842, 77 A.L.R.4th 251 (Tenn. Ct. App. 1986).

63-6-202. Unlawful activities of itinerant physicians or vendors — Penalties.

  1. It is unlawful for any itinerant physician or vendor of any drug, nostrum, ointment or application of any kind intended for treatment of disease or injury to sell or apply the same or for such itinerant physician or vendor, by writing, printing or other methods, to profess to cure or treat diseases or deformity by any drug, nostrum, manipulation or other expedient in this state.
    1. A violation of this section is a Class A misdemeanor.
    2. Each violation of this section constitutes a separate offense.

Acts 1907, ch. 543, § 4; Shan., § 3609a31; Code 1932, § 6935; Acts 1945, ch. 181, § 8; C. Supp. 1950, § 6935; T.C.A. (orig. ed.), § 63-606; Acts 1989, ch. 591, §§ 1, 6.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specifications as to category is a Class A misdemeanor. See also § 39-11-114.

Compiler's Notes. The misdemeanor provisions in this section may be affected by the Criminal Sentencing Reform Act of 1989. See §§ 39-11-114, 40-35-110, 40-35-111.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Constitutional Law, § 82; 20 Tenn. Juris., Physicians and Surgeons, § 4.

NOTES TO DECISIONS

1. Constitutionality.

This section is not unconstitutional as arbitrary legislation, or as unlawfully discriminative as between resident and nonresident physicians. Kirk v. State, 126 Tenn. 7, 150 S.W. 83, 1911 Tenn. LEXIS 2 (1911).

The inhibition of advertising remedies is valid as tending to prevent frauds. Kirk v. State, 126 Tenn. 7, 150 S.W. 83, 1911 Tenn. LEXIS 2 (1911).

2. “Sell or Apply.”

Sale of drugs as property is not prohibited, but sale and application of same. The disjunctive “or” between words sell and apply means “and.” Kirk v. State, 126 Tenn. 7, 150 S.W. 83, 1911 Tenn. LEXIS 2 (1911).

63-6-203. Penalties.

    1. Any person who practices medicine or surgery in this state without having first complied with the provisions of this chapter commits a Class B misdemeanor for each instance of such practice.
    2. Each time any person practices medicine or surgery without first obtaining a valid certificate or renewing a certificate constitutes a separate offense.
    3. Any person filing or attempting to file as the person's own a diploma or license of another or a forged affidavit of identification commits a Class E felony.
  1. All fines for offenses under this chapter shall be paid over to the board to constitute a part of the funds of the board to be paid into the state treasury.

Acts 1901, ch. 78, § 18; Shan., § 3609a32; mod. Code 1932, § 6936; Acts 1945, ch. 181, § 9; mod. C. Supp. 1950, § 6936; T.C.A. (orig. ed.), § 63-607; Acts 1989, ch. 591, §§ 84, 112; 1993, ch. 404, § 6.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Physicians and Surgeons, § 4.

63-6-204. “Practice of medicine” defined — Construction.

    1. Any person shall be regarded as practicing medicine within the meaning of this chapter who treats, or professes to diagnose, treat, operates on or prescribes for any physical ailment or any physical injury to or deformity of another.
    2. Nothing in this section shall be construed to apply to the administration of domestic or family remedies in cases of emergency or to the laws regulating the practice of dentistry.
    3. This chapter shall not apply to surgeons of the United States army, navy, air force, or marine hospital service regardless of the hospital or practice site; provided, that the surgeon's practice is part of the surgeon's authorized military service or training. This chapter shall also not apply to any registered physician or surgeon of other states when called in consultation by a registered physician of this state, or to midwives, veterinary surgeons, osteopathic physicians, or chiropractors not giving or using medicine in their practice, or to opticians, optometrists, chiropodists, or Christian Scientists.
  1. Nothing in this chapter shall be so construed as to prohibit service rendered by a physician assistant, registered nurse, a licensed practical nurse, or a pharmacist pursuant to a collaborative pharmacy practice agreement, if such service is rendered under the supervision, control and responsibility of a licensed physician or to prohibit the provision of anesthesiology services in licensed health care facilities by a dentist licensed in this state who completed a residency program in anesthesiology at an accredited medical school in years 1963 through 1977.
  2. Nothing in this section shall be construed to prohibit a person, corporation, organization or other entity from employing a physician to treat only the entity's full-time, part-time and contract employees, the entity's retirees and dependents of the entity's employees or retirees; provided, however, that the employment relationship between the physician and the person, corporation, organization or other entity is evidenced by a written contract, job description or documentation, containing language which does not restrict the physician from exercising independent medical judgment in diagnosing and treating patients. Under this section, such person, corporation, organization or other entity shall not be deemed to be engaged in the practice of medicine.
  3. Nothing in this section shall be construed to prohibit a community mental health center as defined in § 33-1-101 from employing a physician; provided, that the employment relationship between the physician and the community mental health center is evidenced by a written contract, job description or documentation, containing language which does not restrict the physician from exercising independent medical judgment in diagnosing and treating patients; provided, for the purposes of this subsection (d), “physician” does not include an anesthesiologist, an emergency department physician, a pathologist or a radiologist.
    1. Nothing in this section prohibits a federally-qualified health center or rural health clinic from employing a physician if the employment relationship between the physician and the federally-qualified health center or rural health clinic is evidenced by a written contract, job description, or documentation containing language that does not restrict the physician from exercising independent medical judgment in diagnosing and treating patients.
    2. As used in this subsection (e):
      1. “Federally-qualified health center” has the same meaning as defined under §§ 1861(aa) and 1905 of the federal Social Security Act (42 U.S.C. §§ 1395x and 1396d, respectively);
      2. “Physician” does not include an anesthesiologist, an emergency department physician, a pathologist, or a radiologist; and
      3. “Rural health clinic” has the same meaning as defined under §§ 1861(aa) and 1905 of the federal Social Security Act (42 U.S.C. §§ 1395x and 1396d, respectively).
    1. Notwithstanding this section, nothing shall prohibit a hospital licensed under title 68, chapter 11, or title 33, chapter 2, or an affiliate of a hospital, from employing licensed physicians other than radiologists, anesthesiologists, pathologists, or emergency physicians, to provide medical services, subject to the following conditions:
      1. Employing entities shall not restrict or interfere with medically appropriate diagnostic or treatment decisions;
      2. Employing entities shall not restrict or interfere with physician referral decisions unless:
        1. The physician so employed has agreed in writing to the specific restrictions at the time that the contract is executed;
        2. The restriction does not, in the reasonable medical judgment of the physician, adversely affect the health or welfare of the patient; and
        3. The employing entity discloses any such restrictions to the patient; and
      3. In the event that there is any dispute relating to subdivision (f)(1)(A) or (B), the employing entity shall have the burden of proof.
    2. Employing entities shall not restrict the employed physician's right to practice medicine upon the termination or conclusion of the employment relationship, except as follows:
      1. For physicians from whom the employing entity has made a bona fide purchase of the physician's practice, the employing entity may impose reasonable geographic restrictions upon the employed physician's practice; provided, that:
        1. The maximum allowable area of the restriction is the greater of:
          1. The county in which the primary practice site is located; or
          2. A ten (10) mile radius from the primary practice site;
        2. The duration of the restriction is two (2) years or less, unless a longer period, not to exceed five (5) years, is determined by mutual agreement of the parties in writing to be necessary to comply with federal statutes, rules, regulations, or IRS revenue rulings or private letter rulings;
        3. Any employment agreement or medical practice sale agreement restricting the right of a physician to practice shall:
          1. Allow the physician to buy back the physician's medical practice for the original purchase price of the practice, or, in the alternative, if the parties agree in writing, at a price not to exceed the fair market value of the practice at the time of the buy back, at which time any such restriction on practice shall be void; and
          2. Not require that the physician give more than thirty-day's notice to exercise the repurchase option; provided, that this provision shall not otherwise affect the contract termination notice requirements; and
        4. If the buy back provision is dependent upon a determination of the fair market value of the practice, the contract shall specify the method of determining fair market value by independent appraisal, in the event that the parties cannot agree as to the fair market value. The contract shall also include the following language:

        “In the event that the employing entity and the physician cannot agree upon the fair market value of the practice within ten (10) business days of the physician's notice of intent to repurchase the practice, the physician may remove any contractual restrictions upon the physician's practice by tendering to the employing entity the amount that was paid to the physician for the practice. The employing entity or the physician may then seek a determination of the fair market value of the practice by the independent appraisal method specified by contract.”

      2. For physicians employed independently of a bona fide practice purchase, employing entities shall not restrict the employed physician's right to practice medicine upon the termination or conclusion of the employment relationship, except as allowed by § 63-1-148 or any successor section.
    3. Notwithstanding the foregoing, in the event that the employment contract with a physician employed independently of a bona fide practice purchase is terminated by the employing entity for reasons other than breach by the employee, any such restrictions shall be void.
    4. In any event, nothing in this section shall prohibit any of the following from employing physicians:
      1. A licensed physician; or
      2. A group of licensed physicians, including, but not limited to, either of the following:
        1. A physicians' professional corporation registered under title 48, chapter 101; or
        2. A domestic nonprofit public benefit corporation:
          1. That is recognized as exempt under § 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)), or any successor section;
          2. A purpose of which is to engage in medical education and medical research in conjunction with a college or university operating an accredited medical school in Tennessee;
          3. Whose physician-employees are restricted to the medical faculty of such a college or university; and
          4. Which operates as a “faculty practice plan” for purposes of Title XVIII of the federal Social Security Act (42 U.S.C., Chapter 7, subchapter XVIII), and regulations promulgated in connection therewith;

        Provided, that with respect to any such domestic nonprofit public benefit corporation, physician employees of any such faculty practice plan who practice in the specialties of radiology, pathology, anesthesiology and/or emergency medicine shall be restricted to practice as faculty practice plan employees in those health care institutions, including but not limited to hospitals or surgery centers, in which they were practicing as employees of the nonprofit public benefit corporation on May 30, 1997.

    5. A hospital affiliate that employs physicians shall not engage in any business other than the employment of physicians, the management of physicians and health care facilities, or the ownership of property and facilities used in the provision of health care services. An affiliate of a hospital that employs physicians pursuant to this part shall be subject to the authority of the applicable licensing board under either title 68, chapter 11, or title 33, chapter 2 in connection with employment of physicians. Any violation of this statute by an affiliate shall subject any hospital at which the physician has staff privileges, and that controls or is under common control with the affiliate to the penalties and sanctions applied to hospitals that employ physicians.
      1. No radiologist, anesthesiologist, pathologist, or emergency physician may be employed by a hospital or an affiliate of a hospital, and no hospital or an affiliate of a hospital, may employ any physician to provide medical services provided by radiologists, anesthesiologists, pathologists, or emergency physicians; provided, that a physician may be employed to provide emergency medical services if such physician is employed to provide other medical services.
      2. Notwithstanding subdivisions (f)(6)(A) and (f)(1), a “research hospital,” as defined in this section, may employ radiologists, anesthesiologists, or pathologists under the same terms and conditions as other physicians.
    6. As used in this section, unless the context otherwise requires:
      1. “Affiliate” of a hospital means an entity that directly or indirectly is controlled by, or is under common control with, a hospital licensed under title 68, chapter 11 or title 33, chapter 2. “Affiliate” does not mean, however, a health maintenance organization licensed under title 56, chapter 32;
      2. “Anesthesiologist” is a physician who has completed a residency in anesthesiology and whose practice is primarily limited to anesthesiology, including, without limitation, nerve block, pain management, cardiac and respiratory resuscitation, respiratory therapy, management of fluids, electrolyte and metabolic disturbances, or a dentist licensed in the state who completed a residency program in anesthesiology at an accredited medical school in years 1963 through 1977;
      3. “Emergency physician” is a physician who has either completed a residency in emergency medicine, or practiced emergency medicine full time for a three year period, and whose practice is limited to emergency medicine. “Emergency physician” does not include, however, a physician who has been previously employed to provide nonemergent medical services who, over a period of twelve (12) months or more, becomes a full time emergency physician and who remains employed by mutual agreement;
      4. “Employing entity” means a hospital licensed under title 68, chapter 11, or title 33, chapter 2, or an affiliate of such an entity, that employs one (1) or more physicians. “Employing entity” does not mean, however, a health maintenance organization licensed under title 56, chapter 32;
      5. “Pathologist” is a physician who has completed a residency in pathology and whose practice is primarily limited to pathology, including, without limitation, anatomic and clinical pathology;
      6. “Physician” means a person licensed pursuant to chapter 6 or 9 of this title;
      7. “Psychiatrist” means a physician who has completed a residency in psychiatry and whose practice is primarily limited to psychiatry.
      8. “Radiologist” is a physician who has completed a residency in radiology and whose practice is primarily limited to radiology, including, without limitation, diagnostic radiology, radiation therapy, and radiation oncology; and
      9. “Research hospital” means a hospital at which fifty percent (50%) or more of the inpatients treated during the previous calendar year were treated pursuant to research protocols.
    1. Notwithstanding this section, nothing shall prohibit a renal dialysis clinic licensed under title 68, chapter 11 or an affiliate of a renal dialysis clinic from employing licensed physicians other than radiologists, anesthesiologists, pathologists or emergency physicians to provide medical services, subject to the following conditions:
      1. Employing entities shall not restrict or interfere with medically appropriate diagnostic or treatment decisions;
      2. Employing entities shall not restrict or interfere with physician referral decisions unless:
        1. The physician so employed has agreed in writing to the specific restrictions at the time that the contract is executed;
        2. The restriction does not, in the reasonable medical judgment of the physician, adversely affect the health or welfare of the patient; and
        3. The employing entity discloses the restrictions to the patient; and
      3. In the event that there is any dispute relating to subdivision (g)(1)(A) or (g)(1)(B), the employing entity shall have the burden of proof.
    2. Employing entities shall not restrict the employed physician's right to practice medicine upon the termination or conclusion of the employment relationship, except as allowed by § 63-1-148 or any successor section.
    3. Notwithstanding § 63-1-148 or any successor section, in the event that the employment contract with a physician employed independently of a bona fide practice purchase is terminated by the employing entity for reasons other than breach by the employee, the restrictions shall be void.
    4. In any event, nothing in this section shall prohibit any of the following from employing physicians:
      1. A licensed physician; or
      2. A group of licensed physicians, including, but not limited to, either of the following:
        1. A physicians' professional corporation registered under title 48, chapter 101; or
        2. (a)  A domestic nonprofit public benefit corporation:
          1. (ii)  (a)  A domestic nonprofit public benefit corporation:
            1. That is recognized as exempt under § 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)) or any successor section;
            2. A purpose of which is to engage in medical education and medical research in conjunction with a college or university operating an accredited medical school in Tennessee;
            3. Whose physician-employees are restricted to the medical faculty of such a college or university; and
            4. That operates as a faculty practice plan for purposes of Title XVIII of the federal Social Security Act (42 U.S.C. chapter 7, subchapter XVIII) and regulations promulgated in connection therewith.
          2. Provided, that, with respect to the domestic nonprofit public benefit corporation, physician employees of the faculty practice plan who practice in the specialties of radiology, pathology, anesthesiology or emergency medicine shall be restricted to practice as faculty practice plan employees in those health care institutions, including, but not limited to, hospitals or surgery centers, in which they were practicing as employees of the nonprofit public benefit corporation on May 30, 1997.
      3. “Affiliate” of a renal dialysis clinic means an entity that directly or indirectly is controlled by or is under common control with a renal dialysis clinic licensed under title 68, chapter 11. “Affiliate” does not mean, however, a health maintenance organization licensed under title 56, chapter 32;
      4. “Anesthesiologist” is a physician who has completed a residency in anesthesiology and whose practice is primarily limited to anesthesiology, including, without limitation, nerve block, pain management, cardiac and respiratory resuscitation, respiratory therapy, management of fluids, electrolyte and metabolic disturbances or a dentist licensed in this state who completed a residency program in anesthesiology at an accredited medical school in years 1963 through 1977;
      5. “Emergency physician” is a physician who has either completed a residency in emergency medicine or practiced emergency medicine full-time for a three year period and whose practice is limited to emergency medicine. “Emergency physician” does not include, however, a physician who has been previously employed to provide nonemergent medical services who, over a period of twelve (12) months or more, becomes a full-time emergency physician and who remains employed by mutual agreement;
      6. “Employing entity” means a renal dialysis clinic licensed under title 68, chapter 11 or an affiliate of such an entity that employs one (1) or more physicians. “Employing entity” does not mean, however, a health maintenance organization licensed under title 56, chapter 32;
      7. “Pathologist” is a physician who has completed a residency in pathology and whose practice is primarily limited to pathology, including, without limitation, anatomic and clinical pathology;
      8. “Physician” means a person licensed pursuant to chapter 6 or 9 of this title; and
      9. “Radiologist” is a physician who has completed a residency in radiology and whose practice is primarily limited to radiology, including, without limitation, diagnostic radiology, radiation therapy and radiation oncology.
    1. The general assembly finds that there are special facts above and beyond ordinary competition that would give an unfair advantage to a physician when competing with the physician's former employer, if the former employer is a faculty practice plan. The existence of such special facts warrants protection of the faculty practice plan through restrictive covenants and prohibitions against an employed physician's right to practice medicine upon the termination or conclusion of the employment relationship. The general assembly further finds that the faculty practice plan's right to be free of unfair competition from a former employed physician outweighs any financial hardship to the former employed physician resulting from the operation of any such restrictive covenants or prohibition. The general assembly further finds that restrictive covenants and prohibitions against an employed physician's right to practice medicine upon the termination or conclusion of the employment relationship with a faculty practice plan are reasonable and not inimical to the public interest, subject to the temporal and geographic limitations set forth in subdivision (h)(2).
    2. A faculty practice plan may impose restrictions or prohibitions upon an employed physician's right to practice medicine upon the termination or conclusion of the employment relationship provided that:
      1. The maximum area of the restrictions or prohibitions is the greater of:
  4. The county in which the primary practice site is located; or
    1. Nothing in this section shall be construed to prohibit a charitable clinic from employing or contracting with a physician; provided, that the contractual relationship between the physician and the charitable clinic is evidenced by a written contract, job description, or documentation, containing language that does not restrict the physician from exercising independent professional medical judgment in diagnosing and treating patients.
    2. For the purposes of this subsection (j), the term “charitable clinic” means an entity that meets the following standards:
      1. Has received a determination of exemption from the internal revenue service under 26 U.S.C. § 501(c)(3) or is a distinct part of an entity that has received such a determination of exemption;
      2. Has clinical facilities located in this state;
      3. Has a primary mission to provide health care or dental care services to low-income, uninsured, or underserved individuals;
      4. Provides one (1) or more of the following services for free or at a discounted rate:
        1. Medical care;
        2. Dental care;
        3. Mental health care; or
        4. Prescription medications;
      5. Utilizes volunteer healthcare professionals and nonclinical volunteers; and
      6. Is not required to be licensed under § 68-11-202(a)(1).
    3. For the purposes of this section, the term “employing” shall not allow the employing of those physicians exempted in subdivision (e)(3).
  5. This section does not prohibit a licensed nonresidential office-based opiate treatment facility, as defined in § 33-2-402, from employing or contracting with a physician if the facility has a physician in the ownership structure of its controlling business entity and the employment relationship between the physician to be employed or contracted with and the nonresidential office-based opiate treatment facility is evidenced by a written contract or employment agreement containing language that does not restrict the physician from exercising independent professional medical judgment in diagnosing and treating patients.

An affiliate of a renal dialysis clinic that employs physicians shall not engage in any business other than the employment of physicians, the management of physicians and health care facilities or the ownership of property and facilities used in the provision of health care services or a tissue bank or organ procurement agency. An affiliate of a renal dialysis clinic that employs physicians pursuant to this part shall be subject to the authority of the applicable licensing board under title 68, chapter 11, in connection with employment of physicians. Any violation of this subdivision (g)(5) by an affiliate shall subject any renal dialysis clinic at which the physician has staff privileges and that controls or is under common control with the affiliate to the penalties and sanctions applied to renal dialysis clinics that employ physicians.

No radiologist, anesthesiologist, pathologist or emergency physician may be employed by a renal dialysis clinic or an affiliate of a renal dialysis clinic, and no renal dialysis clinic or an affiliate of a renal dialysis clinic may employ any physician to provide medical services provided by radiologists, anesthesiologists, pathologists or emergency physicians; provided, that a physician may be employed to provide emergency medical services if the physician is employed to provide other medical services.

As used in this section, unless the context otherwise requires:

A ten (10) mile radius from the primary practice site; and

The maximum duration of the restrictions or prohibitions is two (2) years.

As used in this subsection (h), “faculty practice plan” means a domestic nonprofit public benefit corporation as defined in subdivision (f)(4)(B)(ii).

As used in this subsection (h), “primary practice site” includes any health care institution, including, but not limited to, a hospital, clinic, surgery center, or physicians' office, that the faculty practice plan or its affiliated college or university owned, leased, or operated within two (2) years before the termination or conclusion of the employment relationship between the physician and the faculty practice plan and at which the employed physician practiced medicine within such period of two (2) years.

This subsection (h) shall not apply:

To any physician employee of a faculty practice plan who practices in the specialties of ophthalmology, pathology, anesthesiology and/or emergency medicine; or

With respect to any physician employee of a faculty practice plan who practices as a primary care physician or in the specialties of obstetrics or general pediatrics in a health resources shortage area as determined in the health access plan most recently published by the department of health.

The requirements of this subsection (h) shall not be construed to preclude the enforceability of any restrictive covenant or prohibition exceeding the requirements or conditions of this subsection (h) that is reasonable and not inimical to the public interest under the common law principles governing restrictive covenants.

Notwithstanding the restrictions contained in this section, a nursing home or affiliate of a nursing home may employ a physician pursuant to § 68-11-205.

Acts 1901, ch. 78, § 19; Shan., § 3609a33; mod. Code 1932, § 6937; Acts 1945, ch. 181, § 10; impl. am. Acts 1947, ch. 2, §§ 1, 2; C. Supp. 1950, § 6937; modified; Acts 1973, ch. 166, § 7; T.C.A. (orig. ed.), § 63-608; Acts 1983, ch. 168, § 1; 1994, ch. 901, § 3; 1995, ch. 200, § 1; 1995, ch. 466, § 1; 1996, ch. 986, §§ 2, 3; 1996, ch. 1043, § 2; 1997, ch. 349, § 1; 1998, ch. 1081, § 1; 2002, ch. 801, §§ 1, 2; 2003, ch. 115, §§ 1, 2; 2005, ch. 20, § 1; 2008, ch. 891, § 2; 2009, ch. 70, § 1; 2011, ch. 271, §§ 1, 2; 2012, ch. 649, § 2; 2014, ch. 695, §§ 1, 2; 2014, ch. 832, § 5; 2016, ch. 766, § 2; 2017, ch. 259, § 1; 2019, ch. 259, § 1; 2020, ch. 574, § 1.

Amendments. The 2017 amendment rewrote (a)(3) which read: “This chapter shall not apply to surgeons of the United States army, navy, air force or marine hospital service, or to any registered physician or surgeon of other states when called in consultation by a registered physician of this state, or to midwives, veterinary surgeons, osteopathic physicians or chiropractors not giving or using medicine in their practice or to opticians, optometrists, chiropodists or Christian Scientists.”

The 2019 amendment added (k).

The 2020 amendment, in (e)(1), substituted “prohibits” for “shall be construed to prohibit”, “federally-qualified” for “federally qualified” twice, inserted “or rural health clinic” twice and substituted “if” for “; provided, that”; and rewrote (e)(2), which read, “For the purposes of this subsection (e), the term “federally qualified health center” means such entities as defined under §§ 1861(aa) and 1905 of the federal Social Security Act (42 U.S.C. §§ 1395x and 1396d, respectively).” also redesignating former (e)(3) as present (e)(2)(b), deleting “For the purposes of this subsection (e)” from the beginning.

Effective Dates. Acts 2017, ch. 259, § 2. July 1, 2017.

Acts 2019, ch. 259, § 2. April 30, 2019.

Acts 2020, ch. 574, § 2. March 19, 2020.

Cross-References. Dentists, title 63, ch. 5.

Duties relating to known or suspected child sexual abuse, §§ 37-1-403, 37-1-605, 37-1-609.

Guidelines for treatment and examinations in workers' compensation cases, § 50-6-204.

Issuance of oral contraceptives and drugs relating to sexually transmitted diseases, by professional nurse, § 63-7-124.

Midwifery, title 63, ch. 29.

Nursing, title 63, ch. 7.

Opticians, title 63, ch. 14.

Optomestrists, title 63, ch. 8.

Osteopaths, title 63, ch. 9.

Physician assistants, title 63, ch. 19.

Podiatrists, title 63, ch. 3.

Veterinarians, title 63, ch. 12.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Physicians and Surgeons, §§  4, 6.

Law Reviews.

Contracts — Murfreesboro Medical Clinic, P.A. v. Udom: Physician Noncompete Agreements Go Under the Knife: The Tennessee Supreme Court Rejects Physician Noncompete Agreements (Oscar Carr), 36 U. Mem. L. Rev. 1115 (2006).

Recent Developments in the Law Relating to the Physician's Assistant (A. M. Sadler, Jr. and B. L. Sadler), 24 Vand. L. Rev. 1193.

Attorney General Opinions. Employment of physician for corporate employees, OAG 94-009, 1994 Tenn. AG LEXIS 5 (1/28/94).

A physician or registered nurse may be a member of a professional limited liability company (PLLC) “for the practice of electrolysis” only if he or she holds a license to practice electrology; however, a medical doctor may be member of a PLLC for the practice of medicine and engage, in that capacity, in the practice of activities that would otherwise constitute the practice of electrology and may also employ a registered nurse who is not licensed as an electrologist to perform electrology services under the doctor's supervision and control, OAG 01-002, 2001 Tenn. AG LEXIS 4 (1/4/01).

Provision of medical services by a certified nurse practitioner, registered nurse, advanced practice nurse, licensed practical nurse or physician assistant, OAG 07-116, 2007 Tenn. AG LEXIS 116 (8/8/07).

NOTES TO DECISIONS

1. Acts Beyond Scope of License.

Any licensed chiropractor who, in the practice of his profession, engages in activities beyond the scope of those authorized in § 63-4-101 may be found to have invaded the field of medicine as defined in this section and may be disciplined by the state licensing board for the healing arts pursuant to § 63-1-123. Spunt v. Fowinkle, 572 S.W.2d 259, 1978 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1978).

There was material and substantial evidence to support the findings of the state licensing board for the healing arts that a chiropractor exceeded the scope of his license and invaded the field of medicine by making pap smears and by drawing blood for the purpose of diagnosing various human diseases and ailments which were unrelated to chiropractic practice. Spunt v. Fowinkle, 572 S.W.2d 259, 1978 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1978).

2. Cumulated Facts Proving Guilt.

Where, under an indictment, the state had proved several instances of the defendant's advising patients, prescribing for them, or administering medicine to them, the state will not be compelled to elect upon which one of several acts the conviction would be sought, because each several instance was not necessarily an offense. Payne v. State, 112 Tenn. 587, 79 S.W. 1025, 1903 Tenn. LEXIS 127 (1903).

A person who makes microscopic examinations of the blood taken from his patients in his diagnosis of their diseases, treats them by placing them under the rays of electric arc light, and also writes prescriptions and prescribes remedies, though no charge is made for prescriptions, is engaged in the practice of medicine. O'Neil v. State, 115 Tenn. 427, 90 S.W. 627, 1905 Tenn. LEXIS 78, 3 L.R.A. (n.s.) 762 (1905).

3. Definition of “Practicing.”

The term “practicing” indicates the pursuit of a profession; and the fact that defendant was pursuing such profession may be proved, in some cases, by proof of a single act, where that act is definite, or by proof of a series of acts of a similar nature. Payne v. State, 112 Tenn. 587, 79 S.W. 1025, 1903 Tenn. LEXIS 127 (1903); O'Neil v. State, 115 Tenn. 427, 90 S.W. 627, 1905 Tenn. LEXIS 78, 3 L.R.A. (n.s.) 762 (1905).

The field of doctors of medicine covers all human illnesses and diseases and their diagnosis, treatment and prevention. Ison v. McFall, 55 Tenn. App. 326, 400 S.W.2d 243, 1964 Tenn. App. LEXIS 170 (Tenn. Ct. App. 1964), superseded by statute as stated in, Johnson v. Lawrence, 720 S.W.2d 50, 1986 Tenn. App. LEXIS 2842, 77 A.L.R.4th 251 (Tenn. Ct. App. 1986); Spunt v. Fowinkle, 572 S.W.2d 259, 1978 Tenn. App. LEXIS 306 (Tenn. Ct. App. 1978).

Since doctors of osteopathy and medical doctors did not generally attend the same medical colleges, did not generally receive internship training at the same hospitals and were not examined and licensed by a common medical examining board in Tennessee, the trustees of a public hospital had a legal right to accept only medical doctors as members of the medical staff to the exclusion of doctors of osteopathy and other practitioners who were not medical doctors. State ex rel. Carpenter v. Cox, 61 Tenn. App. 101, 453 S.W.2d 69, 1969 Tenn. App. LEXIS 354 (Tenn. Ct. App. 1969).

4. Corporate Practice of Medicine.

Physician was equitably estopped from alleging contract involved corporate practice of medicine after waiting ten years to raise the issue. Medical Educ. Assistance Corp. v. State, 19 S.W.3d 803, 1999 Tenn. App. LEXIS 824 (Tenn. Ct. App. 1999).

5. Covenants Not to Compete.

Covenants not to compete contained in an employment contract, although not favored in the law, are valid and enforceable if reasonable. Medical Educ. Assistance Corp. v. State, 19 S.W.3d 803, 1999 Tenn. App. LEXIS 824 (Tenn. Ct. App. 1999).

Applying the public policy considerations and special circumstances of Tennessee medical schools, under the facts of the case, the non-competition covenant was enforceable against physician. Medical Educ. Assistance Corp. v. State, 19 S.W.3d 803, 1999 Tenn. App. LEXIS 824 (Tenn. Ct. App. 1999).

Medical practice could not enforce a non-compete clause against the doctor because the restrictions in T.C.A. § 63-6-204 were inapplicable and policy considerations such as the right to freedome of choice in physicians, the right to an on-going relationship with a physician, and the benefits of having an increased number of physicians in any given community outweighed the business interests of the medical practice. Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d 674, 2005 Tenn. LEXIS 608 (Tenn. 2005), superseded by statute as stated in, Cent. Ind. Podiatry, P.C. v. Krueger, 882 N.E.2d 723, 2008 Ind. LEXIS 203 (Ind. 2008), superseded by statute as stated in, Thomas v. Pediatrix Med. Group of Tenn., P.C., — S.W.3d —, 2010 Tenn. App. LEXIS 569 (Tenn. Ct. App. Sept. 14, 2010).

6. Nurse Practitioners.

Finding against a hospital in a spouse's medical-malpractice action was improper because hospital was not permitted to control the means and methods by which physicians rendered medical care and treatment to hospital patients, and also the nurse practitioner and emergency room physician with whom she consulted were not employees of the hospital; moreover, T.C.A. § 63-6-204(f)(1) and T.C.A. § 68-11-205(b)(6) precluded hospitals from employing emergency physicians and, like other nurse practitioners in Tennessee, the nurse practitioner at issue was authorized to render health care services without being under the omnipresent supervision or direction of a physician. Barkes v. River Park Hosp., Inc., — S.W.3d —, 2008 Tenn. App. LEXIS 780 (Tenn. Ct. App. Dec. 29, 2008), rev'd, 328 S.W.3d 829, 2010 Tenn. LEXIS 947 (Tenn. 2010).

63-6-205. Practice of naturopathy.

  1. It is unlawful for any person to practice naturopathy in this state.
  2. “Naturopathy” means nature cure or health by natural methods and is defined as the prevention, diagnosis and treatment of human injuries, ailments and disease by the use of such physical forces as air, light, water, vibration, heat, electricity, hydrotherapy, psychotherapy, dietetics or massage and the administration of botanical and biological drugs.
  3. In no event shall naturopathy mean the sale of herbs or natural health information exchanges provided as a service so long as:
    1. The sale or provision of information exchanges is not conducted for the purpose of the prevention, diagnosis or treatment of any physical ailment or physical injury to or deformity of another; and
    2. In any instance involving natural health information exchanges, the seller obtains a signed acknowledgement from the buyer that the seller is neither a licensed practitioner of the healing arts in this state, nor meets the recognized qualification criteria that would allow the provision of any form of diagnosis, treatment recommendation or medical care in this state. For the purposes of meeting the requirements of this section, the seller shall keep the signed acknowledgement from the buyer on file for a period of three (3) years.
  4. A violation of this section is a Class B misdemeanor.
  5. This section does not apply to persons who comply with the regulatory laws of the state with respect to the practice of the various healing arts.

Acts 1947, ch. 2, §§ 1, 2; mod. C. Supp. 1950, § 6940.1 (Williams, § 7025.4); T.C.A. (orig. ed.), § 63-609; Acts 1989, ch. 591, § 112; 2009, ch. 416, § 1; 2012, ch. 745, § 1.

Code Commission Notes.

Acts 2009, ch. 416, § 1, which added subsection (c), provided in subdivision (c)(2) that subsection (c) shall be repealed at midnight, June 30, 2012. Acts 2012, ch. 745, § 1, effective July 1, 2012, provided that subsection (c) is amended by deleting subdivision (c)(2) in its entirety. Pursuant to apparent legislative intent, subdivision (c)(1) has been retained, and subdivision (c)(2) has been deleted.

Compiler's Notes. Acts 2009, ch. 416, § 1 provided that subsection (c) shall be repealed at midnight, June 30, 2012.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Physicians and Surgeons, §  6.

Law Reviews.

Constitutional Law — Prohibition of Practice of Naturopathy as a Separate Branch of the Healing Arts, 1 Vand. L. Rev. 451.

NOTES TO DECISIONS

1. Constitutionality.

This act prohibiting practice of naturopathy is a valid exercise of the police power. Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343, 1947 Tenn. LEXIS 369 (1947), appeal dismissed, 333 U.S. 859, 68 S. Ct. 745, 92 L. Ed. 1138, 1948 U.S. LEXIS 2375 (1948), dismissed, Young v. Murphy, 68 S. Ct. 745, 333 U.S. 863, 92 L. Ed. 1142, 1948 U.S. LEXIS 2398 (1948).

This act prohibiting practice of naturopathy is not a bill of attainder since loss of right to practice is not the result of punishment for some offense committed, but the result of failure to measure up to legislative requirements. Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343, 1947 Tenn. LEXIS 369 (1947), appeal dismissed, 333 U.S. 859, 68 S. Ct. 745, 92 L. Ed. 1138, 1948 U.S. LEXIS 2375 (1948), dismissed, Young v. Murphy, 68 S. Ct. 745, 333 U.S. 863, 92 L. Ed. 1142, 1948 U.S. LEXIS 2398 (1948).

2. Legislative Intent.

The evident intent of the legislature was to withdraw recognition of naturopathy as a separate branch of the healing arts but allow the use of its methods. Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343, 1947 Tenn. LEXIS 369 (1947), appeal dismissed, 333 U.S. 859, 68 S. Ct. 745, 92 L. Ed. 1138, 1948 U.S. LEXIS 2375 (1948), dismissed, Young v. Murphy, 68 S. Ct. 745, 333 U.S. 863, 92 L. Ed. 1142, 1948 U.S. LEXIS 2398 (1948).

This section merely required that persons desiring to practice naturopathy obtain a general practitioner's license or one to practice osteopathy. Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343, 1947 Tenn. LEXIS 369 (1947), appeal dismissed, 333 U.S. 859, 68 S. Ct. 745, 92 L. Ed. 1138, 1948 U.S. LEXIS 2375 (1948), dismissed, Young v. Murphy, 68 S. Ct. 745, 333 U.S. 863, 92 L. Ed. 1142, 1948 U.S. LEXIS 2398 (1948).

63-6-206. Penalty for unlawful issuance of licenses.

  1. It is a Class B misdemeanor, and disqualifies for office, for the board to issue a license to any person except as prescribed in this chapter. Should the board be so disqualified, the governor shall appoint a new board in full as provided in this chapter.
  2. In no event shall the negligent issuance of a license result in criminal prosecution under this chapter.

Acts 1901, ch. 78, § 22; Shan., § 3609a36; mod. Code 1932, § 6940; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 6940; T.C.A. (orig. ed.), § 63-610; Acts 1984, ch. 937, § 29; 1989, ch. 591, § 112; 1993, ch. 404, § 7.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

63-6-207. Application for certificate — Special training licenses — St. Jude Children's Research Hospital global collaboration license.

  1. A person desiring to practice medicine or surgery in this state shall make application in writing to the board or via online application, which shall be accompanied by:
    1. If a United States or Canadian medical school graduate:
      1. A certificate from a medical school whose curriculum is approved by the American Medical Association or its extant accreditation program for medical education, or its successor;
      2. A nonrefundable application fee as set by the board and by an examination fee prescribed in this section;
      3. Evidence of the satisfactory completion of:
        1. A one-year United States training program approved by the American Medical Association or its extant accreditation program for medical education, or its successor; or
        2. A primary specialty training program that is accredited by the Royal College of Physicians and Surgeons of Canada and that is of a duration of not less than four (4) years;
      4. Sufficient evidence of good moral character; and
      5. Evidence of being legally entitled to live or work in the United States if the person is not a citizen of the United States or Canada;
    2. If an international medical school graduate:
      1. A certificate from a medical school whose curriculum is judged to be acceptable by the board;
      2. A copy of a permanent Educational Commission for Foreign Medical Graduates (ECFMG) certificate;
      3. A nonrefundable application fee as set by the board and by an examination fee prescribed in this section;
      4. Sufficient evidence of good moral character;
      5. Evidence of being a citizen of the United States or Canada, or legally entitled to live or work in the United States; and
      6. Evidence of satisfactory completion of a three-year residency program approved by the American Medical Association or its extant accreditation program for medical education, or its successor. Such person may apply to the board for licensure and/or testing in accordance with this chapter within twelve (12) months of completion of the residency program if satisfactory performance in such residency is demonstrated to the satisfaction of the board.
  2. All applicants shall present themselves before the board or the board's administrative designee for examination. The board may question in such subjects as the board may deem appropriate. As its qualifying examination, the board accepts the Federation Licensing Examination (FLEX), and/or the National Board of Medical Examiners examination and/or the United States Medical Licensing Examination or its successor examination. Applicants shall successfully complete the United States Medical Licensing Examination within ten (10) years from the date of whichever step of the examination was successfully completed first. An applicant is considered to have successfully completed a step of the examination on the date that the step was taken and not the date on which the passing score was made public by the examination agency; provided, however, that the board is authorized to promulgate rules and regulations creating exceptions that will extend the ten-year time frame provided in this subsection (b). In addition, the board reserves the right to write its own state board examination or contract with other national testing organizations. The board reserves the right to designate its administrative staff to administer the licensing examinations and to collect such application and examination fees as the board, in its discretion, may deem necessary.
  3. The members of the board also have the right to examine all applicants in such oral examinations as they may deem necessary.
  4. The board is authorized in its discretion to issue special training licenses to medical interns, residents and fellows who have met all other qualifications for licensure contained in this chapter and the rules and regulations promulgated pursuant thereto, with the exception of having completed the necessary residency or training programs required by subdivision (a)(1)(C) and/or (a)(2)(F) and the licensure examination. The board also is authorized to promulgate rules and regulations to implement this new licensure category. The initial set of these rules may be processed as emergency rules pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. These special training licenses will be governed by the following:
      1. Such licenses shall be issued only to medical interns, residents and fellows while participating in a training program of one of the accredited medical schools or of one of such medical school's affiliated teaching hospitals in Tennessee, performing duties assigned to meet the requirements of such program, and while under the supervision and control of a physician fully licensed to practice medicine in Tennessee;
      2. No person holding a special training license is permitted to practice medicine outside of such person's duties and responsibilities in the training program without being fully licensed to practice medicine in Tennessee. Termination of participation in the training program for which the special license was issued for any reason terminates that license;
      3. It is the responsibility of the program director or the dean responsible for the training program to submit the necessary information and applications on behalf of each applicant. It also is the responsibility of the program director or the dean to notify the board of the termination of the applicant's participation in the training program, whether by completion of the program or for any other reason;
      4. The board may impose fees to accompany each individual application for a special training license; and
      5. Recipients of the special training license shall not be subject to the occupational tax levied by § 67-4-1702(3)(B);
        1. Notwithstanding subdivision (d)(1), medical students, interns, residents, and clinical fellows who do not hold a special training license pursuant to this subsection (d) are exempt from the requirement of a license to practice medicine or surgery in this state when such medical students, interns, residents, and clinical fellows are participating in a training program of one (1) of the accredited medical schools or of one (1) of its affiliated teaching hospitals in this state, performing duties assigned to meet the requirements of the training program, and while under the supervision and control of a physician fully licensed to practice medicine or surgery in this state. No such student, intern, resident, or clinical fellow is permitted to practice medicine or surgery outside of the person's duties and responsibilities in the training program without being fully licensed to practice medicine or surgery in this state;
        2. It is the responsibility of the program director or the dean responsible for the training program to apply to the board for an exemption for each such medical student, intern, resident, or clinical fellow. Moreover, it is the responsibility of such program director or dean to notify the board of the termination of the applicant's participation in the training program, whether by completion of the program or for any other reason;
      1. The board may impose a fee to accompany each application for exemption;
      2. Eligibility for the exemption provided for in this subdivision (d)(2) shall apply to all eligible persons in training on April 8, 1994, or thereafter.
  5. The board or the board's designee is specifically authorized to conduct applicant interviews periodically as it deems necessary on a case by case basis.
      1. The general assembly finds that St. Jude Children's Research Hospital is unique as a research center hospital in this state and this nation for protocol-based therapy and treatment of children and adolescents with newly diagnosed untreated or suspected cancer, HIV infections, or certain hematologic, immunologic, or genetic diseases. St. Jude Children's Research Hospital's experts are involved in research and treatment in the fields of hematology, oncology, bone marrow transplantation, immunology, genetic diseases and infectious diseases. The hospital's research involves both basic and clinical science and it is a National Cancer Institute Comprehensive Cancer Center. The general assembly finds that supporting research and treatment by qualified physicians and researchers at St. Jude Children's Research Hospital by means of a special St. Jude Children's Research Hospital global collaboration license would substantially benefit the state, the practice of medicine and the health of persons benefitting from treatment or research conducted at the hospital.
      2. The board is authorized in its discretion to issue a special St. Jude Children's Research Hospital global collaboration license to physicians who have met all other qualifications for licensure contained in this chapter and the rules and regulation promulgated pursuant to this chapter, with the exception of having completed the necessary residency or training programs required by subdivision (a)(1)(C) or (a)(2)(F). The board is also authorized to promulgate rules and regulations to implement this new special licensure category.
    1. These special St. Jude Children's Research Hospital global collaboration licenses will be governed by the following:
      1. Such license shall be issued only to physicians while employed by St. Jude Children's Research Hospital;
      2. No person holding a special St. Jude Children's Research Hospital global collaboration license is permitted to practice medicine outside of such person's duties and responsibilities as an employee of St. Jude Children's Hospital without being fully licensed to practice medicine in Tennessee. Termination of employment with St. Jude Children's Research Hospital for any reason terminates the special license;
      3. It is the responsibility of St. Jude Children's Research Hospital to submit the necessary information and applications on behalf of each applicant. It is also the responsibility of St. Jude Children's Research Hospital to notify the board of the termination of the applicant's employment; and
      4. The board may impose fees to accompany each individual application for this special license.
  6. The board may issue a temporary license of limited duration to an international medical school graduate with demonstrated competency. A temporary license may be issued by the board in its discretion as special circumstances may require. The board may promulgate rules prescribing any other conditions or requirements with respect to the issuance of a temporary license pursuant to this subsection (g).
  7. The board is authorized in its discretion to issue limited licenses to physicians who have been out of clinical practice for an extended period of time or who have been, or are at the time of their application, engaged exclusively in administrative medicine. The board may promulgate rules prescribing any other conditions or requirements with respect to the issuance of a limited license pursuant to this subsection (h).

Acts 1901, ch. 78, § 6; Shan., § 3609a18; Code 1932, § 6923; Acts 1945, ch. 181, § 3; C. Supp. 1950, § 6923; Acts 1975, ch. 355, § 14; impl. am. Acts 1976, ch. 575, § 1; T.C.A. (orig. ed.), § 63-611; Acts 1982, ch. 905, § 4; 1985, ch. 468, §§ 1, 2; 1988, ch. 912, § 1; 1989, ch. 302, § 1; 1989, ch. 523, §§ 41, 42; 1990, ch. 1002, § 1; 1990, ch. 1055, §§ 1, 3; 1993, ch. 404, § 8; 1994, ch. 732, § 2; 1995, ch. 97, §§ 1-3; 1995, ch. 329, § 1; 1998, ch. 877, § 1; 2003, ch. 11, § 1; 2004, ch. 562, § 1; 2006, ch. 774, §§ 1, 2; 2009, ch. 566, § 12; 2010, ch. 724, § 1; 2010, ch. 976, § 1; 2014, ch. 949, § 6; 2016, ch. 632, § 1; 2016, ch. 1035, §§ 1-7.

Compiler's Notes. Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

Acts 2016, ch. 1035, § 8 provided that notwithstanding the act or the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, any rule promulgated to implement the provisions of the act shall be provided to the chairs of the health committee of the house of representatives and the health and welfare committee of the senate by the secretary of state, after approval by the attorney general and reporter, at the same time the text of the rule is made available to the government operations committees of the senate and the house of representatives for purposes of conducting the review required by § 4-5-226 in order for the health committee of the house of representatives and the health and welfare committee of the senate to be afforded the opportunity to comment on the rule.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

NOTES TO DECISIONS

1. Licensure Exemption.

Doctor, who was permitted to practice medicine in Tennessee under a statutory licensure exemption but was not licensed to practice medicine in Tennessee or a contiguous state during the year before the date of the alleged injury or wrongful conduct, did not meet the statutory requirements to testify as an expert witness in a health care liability action because, although the doctor was exempt from the licensure requirement during his fellowship at a university, the licensure exemption did not eliminate the license requirement. Young v. Frist Cardiology, PLLC, 599 S.W.3d 568, 2020 Tenn. LEXIS 148 (Tenn. Apr. 20, 2020).

63-6-208. Exemption for physician for visiting sports team.

  1. A physician who is duly qualified to practice medicine under the laws of another state is exempt from the licensure requirements of § 63-6-201, subject to this section, if either of the following applies:
    1. The physician has a written or oral agreement with a sports team to provide care to team members and coaching staff traveling with the team for a specific sporting event to take place in this state; or
    2. The physician has been invited by a national sport governing body to provide services to athletes and coaching staff at a national sport training center in this state or to provide services to athletes and coaching staff at an event or competition in this state that is sanctioned by the national sport governing body.
  2. The exemption provided by this section only applies while:
    1. The physician's practice is limited to that required by the team or the national sport governing body; and
    2. The services provided by the physician are within the physician's scope of practice.
  3. The exemption provided by subsection (a) permits a physician to provide care or consultation to a person specified in subsection (a). Nothing in this section permits a physician exempt by this section to:
    1. Provide care or consultation to any person residing in this state other than a person specified in subsection (a); or
    2. Practice at a licensed healthcare facility in this state.
  4. An exemption pursuant to subdivision (a)(1) is valid while the physician is traveling with the sports team, subject to the following:
    1. The exemption shall not be longer than ten (10) days in duration for each respective sporting event without prior authorization from the board of medical examiners;
    2. The board of medical examiners may grant an extension of not more than twenty (20) additional days per sporting event; and
    3. No physician shall be exempt for more than thirty (30) total days in a calendar year.
  5. An exemption pursuant to subdivision (a)(2) is valid during the time certified by the national sport governing body; however, no physician shall be exempt for more than thirty (30) total days in a calendar year.
  6. No physician exempt pursuant to this section shall dispense or administer controlled substances unless:
    1. The patient to whom the controlled substance is administered or dispensed is over eighteen (18) years of age and is a person described in subdivision (a)(1) or (a)(2); and
    2. The physician reports all controlled substances dispensed or administered to any applicable state controlled substance database in the physician's state of licensure.
  7. For purposes of this section, “sports team” means a professional, semi-professional, or amateur team including, but not limited to, a college, high school, grade school, or non-school affiliated team, such as those associated with the Amateur Athletic Union (AAU).
  8. The board of medical examiners may enter into agreements with medical licensing boards of other states to implement this section. Agreements may include procedures for reporting potential medical license violations.
  9. The board of medical examiners may promulgate rules to effectuate the purposes of this section. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2017, ch. 329, § 2.

Compiler's Notes. Former § 63-6-208 (Acts 1901, ch. 78, § 7; Shan., § 3609a20; Code 1932, § 6925; Acts 1945, ch. 181, § 5; C. Supp. 1950, § 6925; T.C.A. (orig. ed.), § 63-612; Acts 1982, ch. 905, § 5; 1984, ch. 937, § 30; 1989, ch. 523, § 43), concerning examinations of applicants for medical licenses, was repealed by Acts 1993, ch. 404, § 9, effective May 19, 1993.

Acts 2017, ch. 329, § 1 provided that the act, which enacted this section, shall be known and may be cited as the  “Visiting Sports Team Act.”

Effective Dates. Acts 2017, ch. 329, § 4. January 1, 2018; provided, that for the purpose of promulgating rules, the act took effect May 9, 2017.

63-6-209. Issue of licenses.

  1. Licenses shall be issued promptly by the division as directed by the board after the board determines that an applicant has met all licensure criteria or qualifications and successfully passed the examination. The board shall also issue to such applicant a certificate of registration signed by the administrator of the health related boards, which certificate shall recite that the person is duly registered for the years specified.
  2. The board also has the authority to issue locum tenens and/or conditional licenses as it deems appropriate after reviewing the qualifications of applicants. In addition to the authority granted the board in § 63-6-214, the board has the authority to issue restricted licenses and special licenses based upon licensure to another state for the limited purpose of authorizing the practice of telemedicine to current applicants or current licensees, or both, as it deems necessary, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  3. Any certificate of registration issued by the board shall contain the name of the person to whom it is issued, the address of the person, the date and number of the license and such other information as the board deems necessary. The address contained on this certificate of registration shall be the address of the licensee where all correspondence and renewal forms from the board shall be sent during the two (2) years for which the certificate of registration has been issued and shall be the address deemed sufficient for purposes of service of process.
  4. Any licensee whose address changes from the address contained on the registration certificate shall, within thirty (30) days thereafter, notify the board of the address change.

Acts 1901, ch. 78, § 11; Shan., § 3609a24; Code 1932, § 6928; Acts 1945, ch. 181, § 6; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 6928; Acts 1953, ch. 113, § 15; 1961, ch. 114, § 1; 1972, ch. 587, § 1; T.C.A. (orig. ed.), § 63-613; Acts 1984, ch. 937, § 31; 1985, ch. 48, § 1; T.C.A., § 63-6-210(a); Acts 1993, ch. 404, § 10; 1996, ch. 1043, § 3.

Cross-References. Issuance of licenses, §  63-1-104.

NOTES TO DECISIONS

1. Service.

Tennessee Department of Health properly obtained service by mail under the Rules of Procedure for Contested Cases of the Rules of the Secretary of State because service by certified mail was sufficient despite the Department's failure to obtain a return receipt signed by the doctor. Wyttenbach v. Bd. of Tenn. Med. Examiners, — S.W.3d —, 2016 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 15, 2016), appeal denied, Wyttenbach v. Bd. of TN Med. Examiners, — S.W.3d —, 2016 Tenn. LEXIS 674 (Tenn. Sept. 23, 2016).

2. Due Process.

Tennessee Department of Health satisfied due process because the steps it took were reasonably calculated to apprise the doctor of the charges against him and of the hearing at which his medical license was revoked; the Department advised the doctor of the alleged conduct that warranted action against his license and provided him with an opportunity to show compliance and mailed the notice of the alleged conduct to the doctor at the address shown on his last license renewal application. Wyttenbach v. Bd. of Tenn. Med. Examiners, — S.W.3d —, 2016 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 15, 2016), appeal denied, Wyttenbach v. Bd. of TN Med. Examiners, — S.W.3d —, 2016 Tenn. LEXIS 674 (Tenn. Sept. 23, 2016).

63-6-210. Renewal of licenses — Retirement — Inactive status — Comparison and sharing of information with the Tennessee Medical Association

  1. Each person licensed to practice medicine in this state shall, pursuant to the renewal system established in subsection (b), biennially apply to the board for a renewal of licensure and shall pay a renewal fee as set by the board. Each application shall be made on a form to be furnished by the board and sent to the licensee well in advance of the scheduled renewal date. The board shall, in its discretion, absent receipt of derogatory information, renew licensure upon application made in due form and upon payment of all required fees and shall issue a new biennial registration certificate.
    1. There is hereby authorized the establishment of a system of license renewals at alternative intervals that will allow for the distribution of the license workload as uniformly as is practicable throughout the calendar year. Licenses issued under this renewal system are valid for twenty-four (24) months and shall expire on the last day of the last month of the license period. However, during any transition period, or at any time thereafter when the board shall determine that the volume of work for any given interval is unduly burdensome or costly, either the licenses or renewals, or both, may be issued for terms of not less than six (6) months nor more than eighteen (18) months. The fee imposed for any license under any renewal system for a period of other than twenty-four (24) months shall be proportionate to the biennial fee and modified in no other manner, except that the proportional fee shall be rounded off to the nearest quarter of a dollar (25¢).
    2. A licensee may renew a license within sixty (60) days following the license expiration date upon payment of the renewal fee in addition to a late penalty established by the board for each month or fraction of a month that payment for renewal is late; provided that the late penalty shall not exceed twice the renewal fee. When any licensee fails to renew a license and pay the biennial renewal fee within sixty (60) days after renewal becomes due, as provided in this section, the license shall be automatically revoked at the expiration of sixty (60) days after the renewal was required without further notice or hearing.
  2. Any licensee whose license is automatically revoked as provided in subsection (b), may apply in writing to the board for reinstatement of such license, which may be granted by the board upon the payment of all past due fees and reinstatement fees established by the board, and upon further conditions as the board may require.
  3. Any person licensed to practice by this chapter who has retired or may hereafter retire from practice in this state shall not be made to register as required by this chapter if such person shall file with this board an affidavit of retirement form furnished by the board. The affidavit shall state the date on which the person retired from practice and such other facts as shall tend to verify such retirement as the board shall deem necessary. If the person thereafter wishes to reenter practice in this state, the person shall apply for licensure reactivation with the board, pay a reactivation fee as set by the board and shall meet such other reasonable requirements as may be deemed necessary by the board.
  4. The board shall have the authority to create a renewable inactive licensure status as it deems appropriate upon payment of an appropriate fee assessment and compliance with the requirements established by the board for those licensees who actively practice medicine in a state other than Tennessee.
  5. In order to ensure that the board has the most recent and accurate data on licensees and applicants for licensure within this state, the board shall cooperate with the Tennessee Medical Association by comparing and sharing computer data bases and other physician identification file information, including, without limitation, license numbers, medical education numbers, social security numbers, home and business address information and any other data of a similar, nonconfidential nature, for a reasonable charge.

Acts 1901, ch. 78, § 8; Shan., § 3609a21; mod. Code 1932, § 6926; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 6926; Acts 1976, ch. 473, § 1; T.C.A. (orig. ed.), § 63-614; Acts 1984, ch. 937, § 32; 1986, ch. 675, § 5; 1989, ch. 360, §§ 23, 24; 1989, ch. 523, §§ 44, 45; 1993, ch. 404, § 11; 1996, ch. 1043, § 4; 2010, ch. 1043, § 9.

Compiler's Notes. Former § 63-6-210(a) was transferred to § 63-6-209 in 1986.

Cross-References. Confidentiality of public records, § 10-7-504.

License renewals, §  63-1-107.

Retirement, §  63-1-111.

NOTES TO DECISIONS

1. Revocation.

Tennessee Board of Medical Examiners had authority to revoke a doctor's retired medical license because the doctor still possessed a medical license and remained a licensee when the notice of charges was filed; the statute granting the Board authority to suspend or revoke licenses does not limit that authority based on the current status of a license. Wyttenbach v. Bd. of Tenn. Med. Examiners, — S.W.3d —, 2016 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 15, 2016), appeal denied, Wyttenbach v. Bd. of TN Med. Examiners, — S.W.3d —, 2016 Tenn. LEXIS 674 (Tenn. Sept. 23, 2016).

Reinstatement statute does not distinguish between a physician whose license has been automatically revoked and who has engaged in objectionable behavior prior to the automatic revocation and a physician who has merely lost track of time and neglected to apply for a license renewal within sixty days of the license's expiration date; in both cases, the physician's license has been automatically revoked, and in both cases, the physician is able to apply for reinstatement. Oni v. Tenn. Dep't of Health, — S.W.3d —, 2016 Tenn. App. LEXIS 607 (Tenn. Ct. App. Aug. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 971 (Tenn. Dec. 14, 2016).

Physicians whose license have been automatically revoked and who have engaged in objectionable behavior prior to the automatic revocation and physicians who have merely lost track of time and neglected to apply for a license renewal within sixty days of the license's expiration date are “licensees” even after their licenses are automatically revoked; if the Board permanently revokes a physician's license for cause, however, that physician will not have the opportunity to apply for reinstatement Oni v. Tenn. Dep't of Health, — S.W.3d —, 2016 Tenn. App. LEXIS 607 (Tenn. Ct. App. Aug. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 971 (Tenn. Dec. 14, 2016).

63-6-211. Licensure of out-of-state and international applicants.

  1. The board is authorized to accept the certificates of licensure from other states as long as the applicant's certificates and qualifications meet or exceed the requirements set forth in § 63-6-207 and the rules promulgated pursuant thereto.
  2. The board is likewise authorized to accept certificates of license from other states or countries and grant licenses to practice medicine in Tennessee to individuals who, at the sole discretion of the board based upon its examination and evaluation of such individuals' credentials, qualifications and reputation within the medical community, qualify as distinguished faculty members at a rank of full professor and upon application and payment of a nonrefundable licensure fee as determined by the board. This type of license shall authorize the practice of medicine in conjunction with a faculty appointment and shall automatically expire at any time the licensee fails to maintain a full-time appointment. The board shall retain the sole discretionary authority to grant or deny annual renewal of such licenses. To be considered for licensure pursuant to this subsection (b), an individual must meet each of the following minimum criteria:
    1. Possess a degree of doctor of medicine or its equivalent;
    2. Have a full-time appointment at professorial rank at an accredited college of medicine in Tennessee;
    3. Have current membership in good standing in medical specialty societies that have restricted and selective membership;
    4. Have been invited to be a lecturer or visiting professor at medical educational institutions either abroad or within the United States;
    5. Have delivered scholarly medical papers before national or international meetings; and
    6. Possess letters of support from the dean of the appointing college of medicine and its appropriate department chairs, as well as from academic colleagues from outside of Tennessee attesting to the individual's distinguished status.
  3. For purposes of enforcing federal immigration laws which relate to the licensure of foreign physicians in this state, the board of medical examiners shall enter into a written agreement, in accordance with federal and other applicable law, between the board and the United States department of homeland security concerning the enforcement of federal immigration laws, which may include participation in the federal systematic alien verification of entitlements program, referred to as the “SAVE program,” and its verification information system, operated by the United States department of homeland security or a successor program designated by the United States department of homeland security or any additional certifying agent within the department or approved by the department.

Acts 1907, ch. 543, § 3; Shan., § 3609a19; Code 1932, § 6924; Acts 1945, ch. 181, § 4; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 6924; Acts 1953, ch. 113, § 14; 1961, ch. 114, § 2; 1972, ch. 587, § 2; T.C.A. (orig. ed.), § 63-615; Acts 1989, ch. 523, §§ 46, 47; 1991, ch. 429, § 1; 1993, ch. 404, § 12; 1994, ch. 732, § 4; 2010, ch. 1122, § 1.

63-6-212. Records.

The board shall keep a record of their proceedings in a book provided for that purpose, which book shall be open for inspection and shall record the name of each applicant, the time of granting a license and the names of the members of the board present. Where a license is denied by the board to any applicant under authority of this chapter, the fact and ground of such denial shall be entered on the minutes of the board and shall be communicated in writing to such applicant.

Acts 1901, ch. 78, § 10; Shan., § 3609a23; Code 1932, § 6927; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 6927; T.C.A. (orig. ed.), § 63-616; Acts 1984, ch. 937, § 33.

63-6-213. Investigation and prosecution of violations — Injunctions — Contested cases.

  1. The members of the board shall investigate any supposed violation of this chapter and report to the proper district attorney general all the cases that in the judgment of such member or members warrant prosecution.
  2. It is the duty of the district attorneys general to prosecute violators of this chapter.
    1. The board may, through the department of health's general counsel, petition any circuit or chancery court having jurisdiction over any person within this state who is practicing medicine without a license or in violation of a restriction or condition placed upon a license, regardless of whether such practice resulted from a license being restricted, conditioned, denied, or because a license has been suspended or revoked by action of the board, or any other reason, to enjoin such person from conducting or continuing to conduct the unlawful practice of medicine within this state.
    2. Jurisdiction is conferred upon the circuit and chancery courts of this state to hear and determine all such causes as equity causes and are authorized to exercise full and complete jurisdiction in these injunctive proceedings. Nothing in this section shall be construed as conferring criminal jurisdiction upon any court not now possessing such criminal jurisdiction, nor shall any such court, as an incident to the injunctive proceedings authorized in this section, have the power to assess criminal penalties.
  3. The board shall retain rulemaking authority to adjust the administration of its contested case docket in order to provide for the efficient and orderly disposition of contested cases. This authority may include rulemaking for the setting of reasonable limitations on deadlines for case settlements, and whether several contested cases are set on each meeting's docket of business.

Acts 1901, ch. 78, § 21; Shan., § 3609a35; mod. Code 1932, § 6939; Acts 1945, ch. 181, § 11; C. Supp. 1950, § 6939; T.C.A. (orig. ed.), § 63-617; Acts 1996, ch. 1043, § 5.

Cross-References. Enjoining violations, §  63-1-121.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. L. Rev. 477.

63-6-214. Grounds for license denial, suspension or revocation — Reporting misconduct.

  1. The board has the power to:
    1. Deny an application for a license to any applicant who applies for the same through reciprocity or otherwise;
    2. Permanently or temporarily withhold issuance of a license;
    3. Suspend, or limit or restrict a previously issued license for such time and in such manner as the board may determine;
    4. Reprimand or take such action in relation to disciplining an applicant or licensee, including, but not limited to, informal settlements, private censures and warnings, as the board in its discretion may deem proper; or
    5. Permanently revoke a license.
  2. The grounds upon which the board shall exercise such power include, but are not limited to:
    1. Unprofessional, dishonorable or unethical conduct;
    2. Violation or attempted violation, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate any provision of this chapter or, any lawful order of the board issued pursuant thereto or any criminal statute of this state;
    3. 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 of medicine;
    4. Gross health care liability or a pattern of continued or repeated health care liability, ignorance, negligence or incompetence in the course of medical practice;
    5. Habitual intoxication or personal misuse of any drugs or the use of intoxicating liquors, narcotics, controlled substances, controlled substance analogues or other drugs or stimulants in such manner as to adversely affect the person's ability to practice medicine;
    6. Violation of the laws governing abortion;
    7. Willfully betraying a professional secret;
    8. The advertising of medical business in which untrue or misleading statements are made or causing the publication or circulation of fraudulent advertising relative to any disease, human ailment or conditions;
    9. Willful violation of the rules and regulations promulgated by the board of medical examiners to regulate advertising by practitioners who are under the jurisdiction of such board;
    10. Conviction of a felony, conviction of any offense under state or federal laws relative to drugs or the practice of medicine, conviction of any offense involving moral turpitude or conviction of any offense for which the person is required to register as a sexual offender or violent sexual offender pursuant to title 40, chapter 39, part 2;
    11. 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;
    12. Dispensing, prescribing or otherwise distributing any controlled substance or any other drug not in the course of professional practice, or not in good faith to relieve pain and suffering, or not to cure an ailment, physical infirmity or disease, or in amounts and/or for durations not medically necessary, advisable or justified for a diagnosed condition;
    13. Dispensing, prescribing or otherwise distributing to any person a controlled substance or other drug if such person is addicted to the habit of using controlled substances without making a bona fide effort to cure the habit of such patient;
    14. Dispensing, prescribing or otherwise distributing any controlled substance, controlled substance analogue or other drug to any person in violation of any law of the state or of the United States;
    15. Offering, undertaking or agreeing to cure or treat a disease, injury, ailment or infirmity by a secret means, method, device or instrumentality;
    16. Giving or receiving, or aiding or abetting the giving or receiving, of rebates, either directly or indirectly;
    17. Engaging in the practice of medicine under a false or assumed name, or the impersonation of another practitioner, or a like, similar or different name;
    18. Engaging in the practice of medicine when mentally or physically unable to safely do so;
    19. Using radiation in the treatment of any noncancerous disease, disorder or condition of the skin without first adequately warning the patient of the extent of any known risk of cancer associated with such treatment or repetition of such treatment. Receipt of such advance warning shall be acknowledged by signature of the patient or, in the case of a minor, the patient's parent or guardian and shall be retained by the physician for the period prescribed by the board;
    20. Disciplinary action against a person licensed to practice medicine by another state or territory of the United States for any acts or omissions that 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 section and be sufficient grounds upon which to deny, restrict or condition licensure or renewal and/or discipline a person licensed in this state;
      1. Transferring of patient medical information to a person in another state who is not licensed to practice medicine or osteopathy in the state of Tennessee using any electronic, telephonic or fiber optic means or by any other method if such information is employed to diagnose and/or treat persons physically located within the state of Tennessee;
      2. Notwithstanding the provision of subdivision (b)(21)(A), the transfer of such information shall not be prohibited if such information is:
        1. To be used for a second opinion requested by a Tennessee licensed medical doctor or osteopathic physician;
        2. To be used by an out-of-state physician for treatment of a person who is seeking treatment out of Tennessee;
        3. Used to determine if such patient is covered by insurance;
        4. Used by a physician in another state to provide occasional academic consultations to a medical school located in Tennessee;
        5. Used by insurance or related companies for risk evaluation, utilization review, claims processing and/or evaluation of claimants' rehabilitation, including establishing and administering rehabilitation plans. The establishing and administering of such rehabilitation plans shall not include the diagnosis and/or treatment of persons physically located within Tennessee as prohibited by subdivision (b)(21)(A); or
        6. Used in clinical trials for drugs approved by the food and drug administration;
      3. This subdivision (b)(21) does not apply to research hospitals, as defined in § 63-6-204(f)(7)(I);
      4. This subdivision (b)(21) only applies to X-rays and medical imaging; and
    21. No person licensed in this state to practice medicine shall agree or contract with any clinical, bioanalytical or hospital laboratory, wherever located, to pay such laboratory for anatomic pathology services or cytology services and thereafter include such costs in the bill or statement submitted to the patient or any entity or person for payment, unless the practitioner is in compliance with the requirements of § 56-7-1015(g) and discloses on the bill or statement or in writing by a separate disclosure statement in a minimum print size of ten (10) font the name and address of the laboratory and the net amount or amounts paid or to be paid to the laboratory for the anatomic pathology services or cytology services. This subdivision (b)(22) shall not apply to the state or any local government.
  3. In enforcing this section, the board shall, upon probable cause, have authority to compel an applicant or licensee to submit to a mental and/or physical examination by a designated committee of at least three (3) practicing physicians, including a psychiatrist where a question of mental condition is involved. The applicant or licensee may have an independent medical practitioner present during such examination, and the applicant may have an independent physical or mental examination, which examination report shall be filed with the board for consideration. The committee will submit a report of its findings to the board, which will then hold a hearing as provided in § 63-6-216.
  4. The board, on its own motion, may investigate any report indicating that a doctor of medicine is or may be in violation of subsection (b). Any doctor of medicine, any medical society or any other person who in good faith reports to the board any information that a doctor of medicine is or may be in violation of subsection (b) shall not be subject to suit for civil damages as a result thereof.
  5. Within thirty (30) days after the conviction of a person known to be a physician, licensed or otherwise lawfully practicing within this state or applying to be so licensed or to practice, of a felony under the laws of this state, the clerk of the court of record in which the conviction was entered shall prepare and forward to the board a certified true and correct abstract of record of the court governing the case. The abstract shall include the name and address of the physician or applicant, the nature of the offense committed, the sentence and the judgment of the court. The board shall prepare the form of the abstract and shall distribute copies thereof to all clerks of courts of record within this state with appropriate instruction for preparation and filing.
  6. The board shall report within sixty (60) days its action regarding restriction, suspension or revocation of a physician's license, limitation on practice privileges or other disciplinary action of the board against any physician to appropriate federal and state agencies. The board may report any of the above-mentioned disciplinary actions to the Federation of State Medical Boards of the United States and the Tennessee Medical Association.
  7. For purposes of actions taken pursuant to subdivisions (b)(4), (12) and (13) or any other subsection in which the standard of care is an issue, any Tennessee licensed physician serving as a board member, hearing officer, designee, arbitrator or mediator is entitled to rely upon that person's own expertise in making determinations concerning the standard of care and is not subject to voir dire concerning such expertise. Expert testimony is not necessary to establish the standard of care. The standard of care for such actions is a statewide standard of minimal competency and practice that does not depend upon expert testimony for its establishment. However, to sustain actions based upon a violation of this standard of care, the board must, in the absence of admissions or other testimony by any respondent or such respondent's agent to the effect that the standard was violated, articulate what the standard of care is in its deliberations. Title 29, chapter 26, and specifically § 29-26-115, concerning the locality rule, do not apply to actions taken pursuant to this chapter.
    1. All materials, documents and other matters relating to, compiled or created pursuant to an investigation conducted by the board's investigators against any health care practitioner under the board's jurisdiction, shall be exempt from the public records act until the filing of a notice of charges. After the filing of a notice of charges, only the information and those materials and documents upon which the charges are based are available for disclosure under the public records act; provided, that the identifying information of the following, as well as all investigator created documents and reports, shall remain confidential at all times unless and until introduced in the proceedings:
      1. A complainant;
      2. Any witness who requests anonymity;
      3. A patient; and
      4. Medical records.
    2. This section does not modify or limit the prehearing discovery provisions set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.
    1. The board may utilize one (1) or more screening panels in its investigative and disciplinary process to assure that complaints filed and investigations conducted are meritorious and to act as a mechanism for diversion to professional peer review organizations and/or impaired professionals associations or foundations of those cases that the board, through established guidelines, deems appropriate; upon diversion, such entities shall retain the same immunity as provided by law for the board.
    2. The screening panels shall consist of as many members as the board directs, but shall include at least one (1) but no more than three (3) licensed physicians, who may be members of the board or may serve either voluntarily or through employment by or under contract with the board;
    3. The activities of the screening panels and any mediation or arbitration sessions shall not be construed as meetings of an agency for purposes of the open meetings law, compiled in title 8, chapter 44, and, to the extent required by subdivision (h)(2), shall remain confidential. The members of the screening panels, mediators and arbitrators have a deliberative privilege and the same immunity as provided by law for the board and are not subject to deposition or subpoena to testify regarding any matter or issue raised in any contested case, criminal prosecution or civil lawsuit that may result from or be incident to cases processed before them.
  8. Notwithstanding any provision of the Uniform Administrative Procedures Act, to the contrary, hearing officers are authorized to and may hear board mediation, arbitration or disciplinary contested cases, but may not issue final orders in contested case matters. Notwithstanding any of the provisions of §§ 4-5-314 and 4-5-315 which may be or are inconsistent, such hearing officers may only issue findings of fact and conclusions of law, which shall be referred directly to the board or a duly constituted panel thereof for final action. The board or duly constituted panel, after hearing testimony and arguments from both parties regarding the appropriate disciplinary action and, if allowed by the board, arguments on any controversy raised by the hearing officer's or designee's order, shall issue a final order to include the imposition of what, if any, disciplinary action is deemed appropriate. Only the board or a duly constituted panel thereof shall have the authority to issue final orders that dispose of a pending contested case regardless of whether the issues resulting in the dispositive action are procedural, substantive, factual or legal. If a hearing officer is not available when a contested case, or any motion filed therein requiring action, is ready and scheduled to be heard or fails to timely prepare findings and conclusions pursuant to board established guidelines, the board or a duly constituted panel thereof may rule on the motions and/or hear the contested case or utilize the record compiled before the hearing officers and prepare its own findings of fact, conclusions of law and then issue a final order. With regard to findings and conclusions issued by the hearing officer, or any mediator or arbitrator, the board or any duly constituted panel thereof that reviews the case may do any of the following:
    1. Adopt the hearing officer's, mediator's or arbitrator's findings of fact and conclusions of law, in whole or in part;
    2. Make its own findings of fact and conclusions of law, based solely on the record and the expertise of the members of the board or panel, in addition to or in substitution of those made by the hearing officer, mediator or arbitrator;
    3. Remand the matter back to the hearing officer, mediator or arbitrator for action consistent with the board or panel findings and conclusions in the matter; or
    4. Reverse the hearing officer's, mediator's or arbitrator's findings and/or dismiss the matter entirely.
  9. The board retains jurisdiction to modify or refuse to modify, upon request of any party, any of its orders issued pursuant to this section in compliance with procedures established by the board. The board, pursuant to duly promulgated rules, may, whenever a final order is issued after a disciplinary contested case hearing that contains findings that a licensee or other person has violated any provision of this chapter, assess the costs directly related to the prosecution of the case against the licensee or person.
  10. Any elected officer of the board, or any duly appointed or elected chair of any panel of the board, or any screening panel, and any hearing officer, arbitrator or mediator has the authority to administer oaths to witnesses and, upon probable cause being established, issue subpoenas for the attendance of witnesses and the production of documents and records.
  11. Notwithstanding any provision of this chapter or chapter 9 of this title, or any rule or regulation promulgated thereto to the contrary, it shall not be a violation for a physician or osteopathic physician to prescribe, order, sell or otherwise distribute the Schedule IV drugs fenfluramine, its salts and isomers, and salts of isomers and phentermine, for their currently accepted medical use in the United States.
  12. Notwithstanding any provision of this chapter or chapter 9 of this title, or any rule or regulation promulgated thereto to the contrary, whenever a physician is treating obesity in a child who is under eighteen (18) years of age with Schedule IV drugs fenfluramine, its salts and isomers, and salts of isomers and phentermine, the physician shall:
    1. Obtain the consent of the child's parent or guardian; and
    2. Determine that the child's body mass index (BMI) is at least twenty-seven (27), or is at least twenty-five (25) with co-morbidities, including, but not limited to:
      1. Diabetes;
      2. Hypertension;
      3. Dyslipidemia;
      4. Cardiovascular diseases; and
      5. Sleep apnea.
  13. It is not a violation of this chapter or chapter 9 of this title for a physician or osteopathic physician to prescribe, order, or otherwise distribute, for the purpose of treating binge eating disorder, a drug which is approved by the federal food and drug administration for that indication.

Acts 1901, ch. 78, § 15; Shan., § 3609a29; Acts 1917, ch. 13, § 1; Code 1932, § 6932; Acts 1939, ch. 66, § 1; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 6932; Acts 1975, ch. 355, § 15; 1976, ch. 630, §§ 1, 2; 1979, ch. 129, §§ 1, 2, 3; 1980, ch. 605, § 3; T.C.A. (orig. ed.), § 63-618; Acts 1993, ch. 206, § 1; 1994, ch. 732, § 3; 1995, ch. 329, §§ 3, 4; 1996, ch. 1043, § 6; 1997, ch. 236, §§ 2, 3; 1998, ch. 1039, § 1; 1999, ch. 340, §§ 1, 3, 4; 2004, ch. 715, § 1; 2010, ch. 904, § 1; 2010, ch. 952, § 2; 2012, ch. 798, § 37; 2012, ch. 848, § 71; 2016, ch. 952, § 1.

Compiler's Notes. Acts 2010, ch. 904, § 3 provided that the act, which amended § 63-6-214(b)(10) and enacted § 63-6-240, shall apply to any person licensed to practice medicine in this state, whether such license was issued prior to or after July 1, 2010, and to any person applying to practice medicine in this state, whether the application was filed prior to or July 1, 2010.

Cross-References. Confidentiality of public records, § 10-7-504.

Failure to report treatment of juvenile drug overdoses as professional misconduct, § 68-24-301.

Screening panels, §  63-1-138.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

Attorney General Opinions. The emergency services board does not have authority to develop and use screening panels to assist with the processing and disposition of disciplinary cases; however, the board of chiropractic examiners, board of medical examiners, and board of nursing are authorized by statute to use screening panels in their investigative and disciplinary processes, OAG 01-055, 2001 Tenn. AG LEXIS 47 (4/10/01).

The board of medical examiners has authority to issue administrative subpoenas to compel the attendance of witnesses or the production of documents prior to the commencement of an administrative action, OAG 01-055, 2001 Tenn. AG LEXIS 47 (4/10/01).

NOTES TO DECISIONS

1. Constitutionality.

A physician bringing certiorari to review the findings of the board revoking his license, and after trial on merits, cannot, thereafter on petition for mandatory injunction to reinstate, attack the constitutionality of the statute on the ground that no provision is made for notice and hearing. State Bd. of Medical Examiners v. Friedman, 150 Tenn. 152, 263 S.W. 75, 1923 Tenn. LEXIS 72 (1924).

If the revocation of a physician's license is not merely irregular, but void as based on unconstitutional statute or as failing to follow statutory provisions, injunction or mandamus will lie according to which is appropriate. State Bd. of Medical Examiners v. Friedman, 150 Tenn. 152, 263 S.W. 75, 1923 Tenn. LEXIS 72 (1924).

The provision of (b)(12) is sufficiently clear to a person of ordinary intelligence to put him or her on notice as to what conduct is proscribed and is not unconstitutionally vague. Williams v. State Dep't of Health & Env't, 880 S.W.2d 955, 1994 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1994).

2. Prescriptions.

Where abuse of a drug was a common practice and this fact was known to the medical profession in general, a physician who prescribed this drug, specifically made unlawful, except by prescription, on a sight unseen basis, was grossly negligent and lacked good faith. State v. Sanderson, 550 S.W.2d 236, 1977 Tenn. LEXIS 534 (Tenn. 1977).

Suspension of physician's license was proper where the board's conclusion that physician violated T.C.A. § 63-6-214(b)(12) was based on substantial and material evidence and the board did not have to rely on its own expertise in arriving at that conclusion. Williams v. State Dep't of Health & Env't, 880 S.W.2d 955, 1994 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1994).

3. Right to Practice.

The right to practice medicine is a constitutional property right, of which one cannot be illegally deprived. State Bd. of Medical Examiners v. Friedman, 150 Tenn. 152, 263 S.W. 75, 1923 Tenn. LEXIS 72 (1924).

A license to practice medicine once issued does not constitute a valid contract with the state, and does not confer upon the holder a vested right. State Bd. of Medical Examiners v. Friedman, 150 Tenn. 152, 263 S.W. 75, 1923 Tenn. LEXIS 72 (1924).

4. Assessment of Penalty.

Substantial and material evidence supported the Tennessee Board of Medical Examiners' decision that a physician violated T.C.A. § 63-6-214(b)(1) and (3) by failing to reveal a reckless driving conviction on his medical license renewal application where the decision was based on the physician's credibility, and ignoring any allegedly irrelevant evidence, the applications and the criminal judgment sufficiently supported the decision. Stubblefield v. Tenn. Dep't of Health, — S.W.3d —, 2014 Tenn. App. LEXIS 632 (Tenn. Ct. App. Oct. 6, 2014).

Tennessee Board of Medical Examiners' decision to place the physician's medical license on probation for five years was not arbitrary or capricious where the discipline was imposed after a contested hearing, and the consent degrees involving other physicians were negotiated between the parties. Stubblefield v. Tenn. Dep't of Health, — S.W.3d —, 2014 Tenn. App. LEXIS 632 (Tenn. Ct. App. Oct. 6, 2014).

Nothing in the statute granting the Tennessee Board of Medical Examiners the authority to sanction a licensee limits that authority to those whose licenses have not been automatically revoked due to a failure to renew. Oni v. Tenn. Dep't of Health, — S.W.3d —, 2016 Tenn. App. LEXIS 607 (Tenn. Ct. App. Aug. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 971 (Tenn. Dec. 14, 2016).

Tennessee Board of Medical Examiners did not err in basing its revocation of a doctor's license on his failure to pay the administrative costs that were assessed against him because the doctor's payment of the administrative costs in full prior to the date of the remand hearing did not affect the Board's right to base its determination of the appropriate sanction, in part, on the fees that were outstanding when the notice of charges was filed. Oni v. Tenn. Dep't of Health, — S.W.3d —, 2016 Tenn. App. LEXIS 607 (Tenn. Ct. App. Aug. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 971 (Tenn. Dec. 14, 2016).

5. Standard of Care.

Tennessee Board of Medical Examiners erred in failing to articulate the applicable standard of care when it found that a physician violated the standard of care by failing to comply with the requirements of Tennessee Medical Practice Act, T.C.A. § 63-6-214(b), because pursuant to § 63-6-214(g) the Board was required to articulate the applicable standard of care in its deliberations; because the case did not involve an error or deficiency in the administrative hearing or the facts but rather, an error of law and a deficiency in the record, the Board's error was properly resolved by remand to the Board to conduct deliberations based on the existing record and to articulate during the deliberations the applicable standard of care as required by the statute. Rich v. Tenn. Bd. of Med. Examiners, 350 S.W.3d 919, 2011 Tenn. LEXIS 957 (Tenn. Oct. 10, 2011).

Whether the Tennessee Board of Medical Examiners adopts the standard of care advanced by an expert witness or independently determines the standard of care based on its own expertise, the Board must articulate the standard upon which its decision is based to allow the reviewing court to know the standard and assess the validity of the Board's decision; similarly, when the Board fails to designate the applicable standard of care, a doctor seeking subsequent review of the Board's decision is placed at an unfair disadvantage, and unless it is clear what standard the doctor is held to have violated, he or she cannot properly assess the Board's conclusions in that regard and prepare an effective argument on appeal. Rich v. Tenn. Bd. of Med. Examiners, 350 S.W.3d 919, 2011 Tenn. LEXIS 957 (Tenn. Oct. 10, 2011).

Requirement that the Tennessee Board of Medical Examiners articulate the applicable standard of care in its deliberations serves a twofold purpose: it gives guidance to other physicians practicing medicine in the state as to the standard to which they are expected to conform and informs the reviewing court of the basis for the Board's decision; articulation of the adopted standard of care is critical in cases where the Tennessee Department of Health and the respondent physician have not agreed as to the applicable standard of care, and have submitted conflicting expert testimony in that regard, and even where only one party has presented expert testimony to establish the applicable standard, the Board may reject such testimony and determine a different standard based on its own expertise. Rich v. Tenn. Bd. of Med. Examiners, 350 S.W.3d 919, 2011 Tenn. LEXIS 957 (Tenn. Oct. 10, 2011).

6. Retired License.

Tennessee Board of Medical Examiners had authority to revoke a doctor's retired medical license because the doctor still possessed a medical license and remained a licensee when the notice of charges was filed; the statute granting the Board authority to suspend or revoke licenses does not limit that authority based on the current status of a license. Wyttenbach v. Bd. of Tenn. Med. Examiners, — S.W.3d —, 2016 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 15, 2016), appeal denied, Wyttenbach v. Bd. of TN Med. Examiners, — S.W.3d —, 2016 Tenn. LEXIS 674 (Tenn. Sept. 23, 2016).

7. Subject Matter Jurisdiction.

Trial court erred in ruling the Board of Medical Examiners lacked subject matter jurisdiction to sanction a doctor because the Board had subject matter jurisdiction over the doctor when the case was remanded, even though during the intervening time period his license was automatically revoked for his failure to seek renewal; the doctor's status as a licensee was not altered by the fact that his license had been revoked, and the Board exercised its discretion to revoke his license for cause. Oni v. Tenn. Dep't of Health, — S.W.3d —, 2016 Tenn. App. LEXIS 607 (Tenn. Ct. App. Aug. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 971 (Tenn. Dec. 14, 2016).

8. Revocation.

Doctor failed to show that the decision of the Tennessee Board of Medical Examiners to revoke his license was unwarranted in law or unjustified in fact because the Board's factual findings were supported by the record, and the Board was authorized by statute to revoke a medical license; the Board found the doctor was intentionally dishonest in his dealings with a medical board and that he failed to pay the majority of administrative costs. Oni v. Tenn. Dep't of Health, — S.W.3d —, 2016 Tenn. App. LEXIS 607 (Tenn. Ct. App. Aug. 23, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 971 (Tenn. Dec. 14, 2016).

9. Licensure.

Denial of medical licensure in Tennessee to an applicant was not inappropriate because the decision by the Tennessee Board of Medical Examiners that the applicant's long absence from direct patient care necessitated a formal assessment before the applicant could engage in the practice of emergency medicine in Tennessee was not unclear, arbitrary and capricious, or unsupported by substantial and material evidence. Perez v. Tenn. Bd. of Med. Examiners, — S.W.3d —, 2019 Tenn. App. LEXIS 336 (Tenn. Ct. App. July 3, 2019).

63-6-215. Advertising.

  1. The board shall adopt rules and regulations to regulate the nature, manner, content and extent of advertising by practitioners who are under the jurisdiction of such board.
  2. If advertising is permitted, all methods must be allowed: newspaper, radio and television.

Acts 1901, ch. 78, § 16; 1917, ch. 13, § 2; Shan., § 3609a30; Acts 1919, ch. 117, § 1; Code 1932, § 6933; Acts 1945, ch. 181, § 7; C. Supp. 1950, § 6933; Acts 1975, ch. 355, § 16; 1980, ch. 605, §§ 4, 5; T.C.A. (orig. ed.), § 63-619.

Cross-References. Advertisement pertaining to board certification and specialty, §  63-1-145.

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Hospitals, § 3.

63-6-216. Disciplinary proceedings governed by Administrative Procedures Act.

All proceedings for disciplinary action against a licensee under this chapter shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1939, ch. 66, § 1; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 6932; T.C.A. (orig. ed.), § 63-620; Acts 1982, ch. 905, § 6.

Attorney General Opinions. Statute of limitations regarding physician discipline.  OAG 11-43, 2011 Tenn. AG LEXIS 45 (5/11/11).

NOTES TO DECISIONS

1. Licensee Rights.

The procedural safeguards of the Administrative Procedures Act, title 4, ch. 5, are applicable to medical license revocation proceedings, and T.C.A. § 4-5-320(c) scrupulously protects the fundamental right of notice and an opportunity to be heard. Watts v. Burkhart, 978 F.2d 269, 1992 U.S. App. LEXIS 27830 (6th Cir. Tenn. 1992).

All disciplinary proceedings against medical licensees are to be conducted in accordance with the Uniform Administrative Procedures Act (UAPA), T.C.A. § 63-6-216. Accordingly, the appellate court reviewed the administrative decision under the same standard as the trial court, the standard of review that was set forth in T.C.A. § 4-5-322(h). Hardy v. State, — S.W.3d —, 2010 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 19, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 772 (Tenn. Aug. 25, 2010), cert. denied, Hardy v. Tenn. Dep't of Health, 179 L. Ed. 2d 500, 131 S. Ct. 1603, 79 U.S.L.W. 3512, 2011 U.S. LEXIS 1953 (U.S. 2011).

2. Board Member's Immunity.

Public policy requires absolute immunity for officials performing quasi-prosecutorial or quasi-judicial functions, at least where protections such as those provided by the federal Administrative Procedure Act are in place. The Tennessee Administrative Procedures Act, compiled in title 4, ch. 5, provides procedural safeguards for contested cases comparable to those provided by the corresponding federal law, 5 U.S.C. § 554 et seq.Watts v. Burkhart, 978 F.2d 269, 1992 U.S. App. LEXIS 27830 (6th Cir. Tenn. 1992).

63-6-217. Practice after license revocation — Penalty.

After the board has revoked the license of any person for any of the grounds specified in §§ 63-6-214 and 63-6-215, such person shall not thereafter practice medicine or surgery in the state, and for each and every instance of such practice the person commits a Class B misdemeanor.

Acts 1919, ch. 117, § 2; Shan. Supp., § 3609a30b1; Code 1932, § 6934; T.C.A. (orig. ed.), § 63-621; Acts 1989, ch. 591, § 112.

Cross-References. Penalties, §  63-1-123.

Penalty for Class B misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 20 Tenn. Juris., Physicians and Surgeons, § 4.

63-6-218. “Good Samaritan Law.”

  1. This section shall be known and cited as the “Good Samaritan Law.”
  2. Any person, including those licensed to practice medicine and surgery and including any person licensed or certified to render service ancillary thereto, or any member of a volunteer first aid, rescue or emergency squad that provides emergency public first aid and rescue services, shall not be liable to victims or persons receiving emergency care for any civil damages as a result of any act or omission by such person in rendering the emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person, except such damages as may result from the gross negligence of the person rendering such emergency care, who in good faith:
    1. Renders emergency care at the scene of an accident, medical emergency and/or disaster, while en route from such scene to a medical facility and while assisting medical personnel at the receiving medical facility, including use of an automated external defibrillator, to the victim or victims thereof without making any direct charge for the emergency care; or
    2. Participates or assists in rendering emergency care, including use of an automated external defibrillator, to persons attending or participating in performances, exhibitions, banquets, sporting events, religious or other gatherings open to the general public, with or without an admission charge, whether or not such emergency care is made available as a service, planned in advance by the promoter of the event and/or any other person or association.
  3. A receiving medical facility shall not be liable for any civil damages as a result of any act or omission on the part of any member of a volunteer first aid, rescue or emergency squad that provides emergency public first aid and rescue services while such person is assisting medical personnel at the receiving medical facility.
  4. The members of such volunteer fire squad, while providing fire protection within such area outside of a plant, shall be liable to suit under the provisions of the Governmental Tort Liability Act, compiled in title 29, chapter 20, part 2, if:
    1. A volunteer fire squad is organized by a private company for the protection of the plant and grounds of such company;
    2. Such squad is willing to respond and does respond to calls to provide fire protection for residents living within a six (6) mile radius of the county surrounding such plant; and
    3. The plant is located in a county that does not otherwise provide fire protection to such residents.

Acts 1963, ch. 46, §§ 1, 2; 1976, ch. 551, § 1; T.C.A., § 63-622; Acts 1985, ch. 338, §§ 1-4; 1994, ch. 556, § 1; 1998, ch. 963, § 5; 1999, ch. 488, §§ 1, 2.

Cross-References. Automated external defibrillators, title 68, ch. 140, part 4.

Compressed gases Good Samaritan Law, title 68, ch. 135, part 2.

Emergency Medical Services Act of 1983, title 68, ch. 140, part 5.

Emergency treatment of minors, § 63-6-222.

Good Samaritan Protection Act of 1999, §  29-34-201.

Good Samaritan Volunteer Firefighters’ Assistance Act, §  29-34-206.

Hazardous materials Good Samaritan Law, title 68, ch. 131, part 2.

Immunity from liability for use of automated external defibrillators, §§ 68-140-40468-140-409.

Law Reviews.

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 415 (1986).

Attorney General Opinions. Personal immunity of emergency medical technicians and paramedics from tort suits, OAG 03-093, 2003 Tenn. AG LEXIS 112 (7/28/03).

The “Good Samaritan Law” applies to an untrained person who uses an automated external defibrillator under the circumstances set forth in the statute. OAG 18-47, 2018 Tenn. AG LEXIS 46 (11/21/2018).

NOTES TO DECISIONS

1. Applicability.

Good Samaritan Law, T.C.A. § 63-6-218, did not insulate a county from liability in an estate's negligence action because the trial court specifically found the injury to the decedent's leg happened in the ambulance in transit to the hospital; the decedent's leg was amputated after suffering the injury. Wilson v. Monroe County, 411 S.W.3d 431, 2013 Tenn. App. LEXIS 53 (Tenn. Ct. App. Jan. 30, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 511 (Tenn. June 12, 2013).

2. Pre-existing Duty to Render Aid.

The Good Samaritan Law does not protect a defendant who had a pre-existing duty to render aid to the injured person. Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 1985 Tenn. LEXIS 511 (Tenn. 1985) (social guest-host relationship).

63-6-219. Surgical assistants.

  1. No person shall use or assume the title “registered surgical assistant” unless such person is registered with the board as a registered surgical assistant.
  2. The board shall register as a registered surgical assistant any applicant who presents satisfactory evidence that the applicant:
    1. Holds and maintains a current credential as a surgical assistant or surgical first assistant issued by the National Board of Surgical Technology and Surgical Assisting, the National Surgical Assistant Association, or the National Commission for Certification of Surgical Assistants or their successors;
    2. Has successfully completed a surgical assistant training program during the applicant's service as a member of any branch of the armed forces of the United States; or
    3. Has practiced as a surgical assistant at any time in the six (6) months prior to July 1, 2017, provided the applicant registers with the board by December 31, 2019.
  3. The board shall have the authority to deny, restrict, condition, revoke, or otherwise discipline the registration of a surgical assistant for violation of this section, violation of any rules promulgated pursuant to this section, or any basis provided in § 63-6-214.

Acts 2017, ch. 410, § 1.

Compiler's Notes. Former § 63-6-219 concerned the Tennessee Peer Review Law of 1967. For similar provisions, see §§ 68-11-272 and 63-1-150.

For the Preamble to the act concerning surgical assistants, please refer to Acts 2017, ch. 410.

Effective Dates. Acts 2017, ch. 410, §  2. July 1, 2017.

63-6-220. Treatment of juvenile drug abusers without parental consent.

  1. Physicians may treat juvenile drug abusers without prior parental consent.
  2. A physician may use the physician's own discretion in determining whether to notify the juvenile's parents of such treatment.

Acts 1972, ch. 597, § 13; T.C.A., § 63-624.

Cross-References. Emergency treatment of minors, § 63-6-222.

Law Reviews.

To Be or Not To Be in Tennessee: Deciding Surrogate Issues, 34 U. Mem. L. Rev. 333 (2004).

63-6-221. Office-based surgeries.

  1. For the purposes of this section, unless the context otherwise requires:
    1. “Board” means the board of medical examiners;
    2. “Level II office-based surgery” means Level II surgery, as defined by the board of medical examiners in its rules and regulations, that is performed outside of a hospital, an ambulatory surgical treatment center or other medical facility licensed by the department of health;
    3. “Office-based surgery” or “Level III office-based surgery” means Level III surgery requiring a level of sedation beyond the level of sedation defined by the board of medical examiners as Level II surgery that is performed outside a hospital, an ambulatory surgical treatment center or other medical facility licensed by the department of health;
    4. “Physician” means any person licensed under this chapter; and
    5. “Surgical suite” means both the operating and recovery room or rooms located in a physician's office where Level III office-based surgery is to be performed.
  2. The board shall have the duty and responsibility to regulate the practice of office-based surgery, including the promulgation of rules necessary to promote patient health and safety in such practices, including, but not limited to, a mechanism by which all office-based surgical suites are surveyed and certified by the board.
  3. The board shall specifically identify in rules the parameters to be used in determining Level III surgical procedures and multiple procedures that may be performed in an office-based setting pursuant to the level of anesthesia involved in the procedures. In addition, the board shall promulgate age and risk classification criteria of patients eligible for Level III office-based surgical procedures.
  4. By December 30, 2007, the board shall adopt rules establishing a specific list of approved Level III surgical procedures that can be performed in a physician's office in this state. The ambulatory surgical center covered procedures list promulgated by the centers of medicare and medicaid shall be used as a guide. No physician shall perform any Level III surgical procedures that are not included on the list promulgated by the board. The board may modify the list as the board deems necessary. The board shall also promulgate rules addressing the minimum requirements deemed necessary by the board for the safe performance of office-based surgery.
  5. Using the rules established for ambulatory surgical treatment centers as guidelines, the board shall promulgate rules relative to infection control, life safety, patient rights, hazardous waste and equipment and supplies necessary to assure the safety of patients undergoing office-based surgery. Any provision in the ambulatory surgical treatment center rules addressing infection control, life safety, patient rights, hazardous waste and equipment and supplies that is not adopted by the board shall require a statement entered into the official minutes from the board justifying the board's decision.
  6. No more than three (3) patients undergoing Level III office-based surgery in a physician’s office may be incapable of self-preservation at the same time. The board shall promulgate rules requiring physician offices that perform office-based surgery to adopt bylaws that put in place a management system and documentation that will ensure that no more than three (3) patients that are in surgery or recovery are incapable of self-preservation at the same time. The bylaws and documentation of the management system shall be included in the application for surgical suite certification.
  7. Except for emergencies, a surgical suite certified for office-based surgery may be utilized only by physician employees of the practice in which the surgical suite is located. Surgical suites may not be shared with other practices or other physicians.
  8. The board shall enter into a memorandum of understanding, contract or other written arrangement with the department of health such that the department:
    1. Provides a site survey of the surgical suites sought to be certified to perform office-based surgery. A physician office at which office-based surgeries are being performed as of October 1, 2007, shall submit both a request for a site survey on an application form developed by the board and remit payment of the office-based surgery fee to the department by October 1, 2007. If the office makes a timely filing in accordance with this subdivision (h)(1), the physician's office may continue to be a site for office-based surgeries pending completion of a survey confirming compliance with board rules and subsequent issuance of a certification of the surgical suite or suites. A physician office at which office-based surgeries are not being performed as of October 1, 2007, shall not perform any such procedures until an application form and payment of the office-based surgery fee is submitted to the board and a site survey is completed by the department and a certification of the surgical suite is issued by the board;
    2. Is authorized to require plans of correction and to verify that the plans of correction have been implemented;
    3. Is authorized to initiate subsequent, unannounced site surveys during regular business hours as long as the physician office continues to be used to perform office-based surgeries, but no more frequently than once every twelve (12) months; and
    4. Is authorized to respond to any complaints made by patients or the public against a physician who performs office-based surgery or a physician's office at which office-based surgery is being performed at the request of the office of investigations.
  9. The results of all site surveys shall be transmitted by the department to the board. The results shall include any requirement for plans of correction, the department's determination of the acceptability of the submitted plans of correction and the department's verification that the plans of correction have been implemented. The board shall make a final determination on certifying the surgical suite for performance of office-based surgeries. The results of site surveys and board determinations shall be shared on a routine basis with the board for licensing health care facilities.
  10. The results of all complaint investigations by department staff shall be transmitted to the board for resolution; however, that information shall at all times be maintained as confidential and not available to the public except to the extent § 63-1-117(g) applies.
  11. Any physician office that desires to be certified to perform office-based surgery shall pay to the department an annual office-based surgery fee as set by the board.
  12. A physician office at which office-based surgery is being performed shall ensure that claims data is reported to the commissioner of health on a form approved by the department of health. The data shall be submitted through a third party approved by the department of health for the purpose of editing the data according to rules and regulations established by the commissioner. The physician office shall be responsible for the costs associated with processing of the data by the approved vendors. The claims data shall be reported at least quarterly to the commissioner. No information shall be made available to the public by the commissioner that reasonably could be expected to reveal the identity of any patient. The claims data reported to the commissioner under this section are confidential and not available to the public until the commissioner processes and verifies the data. The commissioner shall prescribe conditions under which the processed and verified data are available to the public.
    1. Except as provided in subdivision (h)(1), a physician office surgical suite is required to be certified by the board in order to perform office-based surgery. A physician office that proposes to perform office-based surgery shall submit to the board, on an application form provided by the board, at least the following:
      1. Level III procedures expected to be performed by each physician;
      2. The specialty board certification or board eligibility of the physician or physicians performing Level III procedures, if any;
      3. Verification of health care liability coverage for all physicians performing Level III procedures;
      4. Verification of hospital staff privileges for all physicians performing Level III procedures;
      5. The name of a responsible physician in whose name the surgical suite certification shall be issued for that office and a list of the physicians with the practice who are going to be performing Level III office-based surgeries; and
      6. The documentation required by subsection (f) regarding incapacitated patient limits.
    2. The form required by subdivision (m)(1) shall serve as an application form, but the information on the form shall be updated as appropriate when any information on it has changed.
  13. The board shall notify all physicians of the office-based surgery certification requirements. Failure of a physician performing office-based surgery or a physician office at which office-based surgery is being performed to abide by this section, any rules promulgated pursuant to this section or of § 68-11-211 may be grounds for disciplinary action or termination of either the rights of the physician to perform office-based surgery or the surgical suite's certification by the physician's licensing board, or both disciplinary action and termination. For purposes of § 4-5-320(c), the public health, safety and welfare imperatively require emergency action at any time that a previously authorized surgical suite fails to maintain the standards set by the board.
  14. Applicants for initial licensure or reinstatement of a previously issued license shall indicate to the board on the appropriate licensure application if they intend to perform Level II office-based surgery procedures as defined by the rules of the board of medical examiners and that are integral to a planned treatment regimen and not performed on an urgent or emergent basis.
  15. Licensed physicians who perform Level II office-based surgery at the time of licensure renewal shall indicate to the board on the licensure renewal application if the licensee currently performs Level II office-based surgery procedures as defined in the rules of the board of medical examiners and that are integral to a planned treatment regimen and not performed on an urgent or emergent basis.
  16. In order for health care providers and the board to work together to collect meaningful health care data, so as to minimize the frequency and severity of certain unexpected events and improve the delivery of health care services, each physician who performs any Level II office-based surgery or Level III office-based surgery that results in any of the following unanticipated events shall notify the board in writing within fifteen (15) calendar days following the physician's discovery of the event:
    1. The death of a patient during any Level II office-based surgery or Level III office-based surgery or within seventy-two (72) hours thereafter;
    2. The transport of a patient to a hospital emergency department except those related to a natural course of the patient's illness or underlying condition;
    3. The unplanned admission of a patient to a hospital within seventy-two (72) hours of discharge, only if the admission is related to the Level II office-based surgery or Level III office-based surgery, except those related to a natural course of the patient's illness or underlying condition;
    4. The discovery of a foreign object erroneously remaining in a patient from a Level II office-based surgery or Level III office-based surgery at that office; or
    5. The performance of the wrong surgical procedure, surgery on the wrong site or surgery on the wrong patient.
  17. Records of reportable events should be in writing and should include at a minimum the following:
    1. The physician's name and license number;
    2. The date and time of the occurrence or discovery of the incident;
    3. The office and address where the incident took place;
    4. The name and address of the patient;
    5. The type of Level II office-based surgery or Level III office-based surgery that was performed;
    6. The type and dosage of sedation or anesthesia utilized during the procedure;
    7. The circumstances surrounding the incident; and
    8. The type or types of events required to be reported as provided in subsection (q).
  18. The filing of a report as required by subsection (q) does not, in and of itself, constitute an acknowledgement or admission of health care liability, error or omission. Upon receipt of the report, the board may, in its discretion, obtain patient and other records pursuant to authority granted to it in § 63-1-117. The reporting form and any supporting documentation reviewed or obtained by the board pursuant to this section and any amendments to the reports shall be confidential and not subject to discovery, subpoena or legal compulsion for release to any person or entity; nor shall they be admissible in any civil or administrative proceeding, other than a disciplinary proceeding by the board; nor shall they be subject to any open records request made pursuant to title 10, chapter 7, part 5 or any other law. This section shall not affect any of the provisions of or limit the protections provided by § 63-1-150.
  19. Failure to comply with the requirements of subsections (o)-(s) constitutes grounds for disciplinary action by the board in its discretion pursuant to § 63-6-214.

Acts 2007, ch. 373, § 1; 2008, ch. 927, §§ 1, 2; 2010, ch. 637, §§ 1-6; 2012, ch. 798, §§ 38, 39; 2017, ch. 4, § 4.

Compiler's Notes. Former § 63-6-221 (Acts 1975, ch. 182, §§ 1-5; 1976, ch. 403, § 1; T.C.A., §§ 63-625 — 63-629) concerning licensure of Tennessee citizens who attend the Universidad Autonoma de Guadalajara was repealed by Acts 1982, ch. 905, § 8.

Acts 2007, ch. 373, § 6 provided that the board of medical examiners and the board of osteopathic examination are authorized to promulgate public necessity rules (now emergency rules) necessary to carry out the provisions of the act in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2017 amendment substituted “provided by § 63-1-150” for “§§ 63-6-219 [repealed] and 63-9-114” at the end of (s).

Effective Dates. Acts 2017, ch. 4, § 11. March 15, 2017.

Cross-References. Confidentiality of public records, § 10-7-504.

63-6-222. Emergency treatment of minors.

  1. Any licensed physician may perform emergency medical or surgical treatment on a minor, despite the absence of parental consent or court order, where such physician has a good faith belief that delay in rendering emergency care would, to a reasonable degree of medical certainty, result in a serious threat to the life of the minor or a serious worsening of such minor's medical condition and that such emergency treatment is necessary to save the minor's life or prevent further deterioration of the minor's condition.
  2. Such treatment shall be commenced only after a reasonable effort is made to notify the minor's parents or guardian, if known or readily ascertainable.
  3. Any physician rendering emergency care to a minor pursuant to this section shall not be liable for civil damages, except such damages as may result from the negligence of the physician in rendering such care.

Acts 1981, ch. 242, § 1; T.C.A., § 63-630.

Cross-References. Courses in detection and treatment of child sexual abuse, § 49-7-117.

“Good Samaritan Law,” § 63-6-218.

Prenatal care for minors, § 63-6-223.

Treatment of juvenile drug users, § 63-6-220.

63-6-223. Prenatal and peripartum care for minors.

  1. Any person licensed to practice medicine, including those persons rendering service pursuant to § 63-6-204, may, for the purpose of providing prenatal care, examine, diagnose and treat a minor without the knowledge or consent of the parents or legal guardian of the minor and shall incur no civil or criminal liability in connection therewith except for negligence.
  2. Any person licensed to practice medicine, including those persons rendering service pursuant to § 63-6-204, may, for the purpose of providing peripartum care, which may include providing peripartum analgesia, examine, diagnose, and treat a minor who is at least fourteen (14) years of age without the knowledge or consent of the parents or legal guardian of the minor and shall incur no civil or criminal liability in connection therewith except for negligence.

Acts 1986, ch. 581, § 1; T.C.A., § 63-6-224; Acts 2017, ch. 138, § 1.

Compiler's Notes. Former § 63-6-223 was transferred to § 63-6-224.

Amendments. The 2017 amendment added (b).

Effective Dates. Acts 2017, ch. 138, § 2. July 1, 2017.

Cross-References. Emergency treatment of minors, § 63-6-222.

63-6-224. Regulation of persons operating X-ray equipment. [Transferred.]

Acts 1982, ch. 905, § 7; T.C.A., § 63-6-223; Acts 2000, ch. 956, § 1; transferred § 63-6-902 by Acts 2016, ch. 1029, §  1, effective January 1, 2017.

Former § 63-6-224 was transferred to § 63-6-902 by authority of the Code Commission. For this section as effective on January 1, 2017, please see § 63-6-902.

63-6-225. Unlawful division of fees by physicians.

  1. It is an offense for any licensed physician or surgeon to divide or to agree to divide any fee or compensation of any sort received or charged in the practice of medicine or surgery with any person without the knowledge and consent of the person paying the fee or compensation or against whom the fee may be charged.
  2. This section does not prohibit a physician from compensating any independent contractor that provides goods or services to the physician on the basis of a percentage of the physician's fees generated in the practice of medicine. The percentage paid must be reasonably related to the value of the goods or services provided. Payments by physicians in return for referrals are prohibited.
  3. A violation of this section is a Class B misdemeanor.

Acts 1989, ch. 591, § 3; 1995, ch. 466, § 2.

Compiler's Notes. This section is the successor to former § 39-6-1202.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Attorney General Opinions. Applicability of section, OAG 95-030 (4/5/95).

Constitutionality, OAG 95-030 (4/5/95).

NOTES TO DECISIONS

1. Application.

Medical group employer was entitled to recover damages from a surgeon employee for breach of an employment agreement because, although the agreement allowed an unlicensed general corporation owned in part by a non-physician to be compensated through a percentage of the net profits the employee generated in violation of statutes and public policy, the trial court did not err in finding that the employee, by the employee's actions, ratified the voidable agreement and violated the duty of good faith and fair dealing under the agreement. Plastic Surgery Assocs. of Kingsport v. Pastrick, — S.W.3d —, 2015 Tenn. App. LEXIS 345 (Tenn. Ct. App. May 19, 2015), appeal denied, Plastic Surgery Assocs. of Kingsport Inc. v. Pastrick, — S.W.3d —, 2015 Tenn. LEXIS 752 (Tenn. Sept. 16, 2015).

63-6-226. Additional penalty — Suit for recovery.

  1. Any person who violates § 63-6-225 shall also forfeit and pay treble the value of the fee or compensation to the person applying the same or against whom the fee may be charged, or from whom it may have been demanded, and if the party entitled to sue does not sue within two (2) years after the fee or compensation has been paid or demanded, then the state shall have the right to sue for and recover such treble amount, which shall, upon recovery, be paid one-half (½) into the state treasury and one-half (½) to the officer prosecuting the suit.
  2. It is the duty of the attorney general and reporter, or of the district attorney general of any county in which service of process may be had upon the person liable, to institute in the name of the state all suits necessary for the recovery of the sum of money.

Acts 1989, ch. 591, § 3.

Compiler's Notes. This section is the successor to former § 39-6-1203.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477.

63-6-227. Cancellation of license upon conviction.

The license of any physician or surgeon who is convicted of a violation of § 63-6-225 may, upon the first conviction, and shall, upon any subsequent conviction, be adjudged to be cancelled and annulled by the court before which the conviction may be and, without further trial or hearing, the physician or surgeon shall not thereafter again be admitted to practice medicine or surgery within this state.

Acts 1989, ch. 591, § 3.

Compiler's Notes. This section is the successor to former § 39-6-1204.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

63-6-228. Community health management information systems.

  1. This section shall be known and may be cited as the “Tennessee Community Health Management Information System Law of 1993.”
  2. As used in this section, unless the context otherwise requires:
    1. “Collected data” means health care data consisting of all information, interviews or other reports, statements, memoranda or other information furnished from all sources and in whatever form to the quality assessment committee, together with the records, reports, proceedings and other information used by the quality assessment committee to reach its conclusions in the form of releasable data as defined in this section;
    2. “Community health management information system (CHMIS)” means any broad based organization, including, but not limited to, providers of health care goods and services, payors for health care goods and services, including insurors and employers, and users of health care goods and services, whose goal is to monitor and improve the level of community wellness and the quality of health care rendered by providers of health care delivery services and the financial reimbursement systems in a county having a population in excess of eight hundred thousand (800,000), according to the 1990 federal census or any subsequent federal census;
    3. “Quality assessment committee” means a committee of a CHMIS consisting primarily of physicians and other providers of health care, with insurors and employers, whose purpose is to collect, analyze and refine health care data as part of the CHMIS; and
    4. “Releasable data” means summaries and conclusions of collected data of the quality assessment committee determined by such quality assessment committee to be scientifically valid and formally delivered to the quality executive committee to achieve the purposes of the CHMIS.
  3. It is the stated policy of Tennessee to encourage each CHMIS to candidly, conscientiously and objectively monitor and improve the level of community wellness and quality of health care delivery services and financial reimbursement systems. Tennessee further recognizes that confidentiality is essential both to effective functioning of the CHMIS and to continued improvement in the access to, the efficiency of and the quality of health care services. As incentive for the providers, payors and users of health care services to participate in a quality assessment committee, such quality assessment committee must be protected from liability for its good faith efforts. To this end, a quality assessment committee of a CHMIS should be granted certain immunities relating to its actions undertaken as part of its responsibility to collect, analyze and refine health care data. In instances of a quality assessment committee examining the appropriateness of physicians' fees, this immunity must also extend to restraint of trade claims under title 47, chapter 25.
    1. All health care professional associations and societies and other organizations, including insurors and employers, institutions, foundations, entities and associated communities as identified in subsection (c), physicians, registered nurses, hospitals, hospital administrators and employees, members of boards of directors or trustees of any publicly supported or privately supported hospital or other such provider of health care, any person acting as a staff member of a quality assessment committee of a CHMIS, any person under a contract or other formal agreement with a quality assessment committee of a CHMIS, any person who participates with or assists a quality assessment committee of a CHMIS with respect to its functions or any other individual appointed to any quality assessment committee as such term is described in subsection (b) shall be immune from liability to any patient, individual or organization for furnishing information, data, reports or records to any such quality assessment committee or for damages resulting from any decision, opinions, actions and proceedings rendered, entered or acted upon by a quality assessment committee undertaken or performed within the scope or function of the duties of such quality assessment committees, if made or taken in good faith and without malice and on the basis of facts reasonably known or reasonably believed to exist.
    2. Notwithstanding subdivision (d)(1), any person providing information to a quality assessment committee of a CHMIS regarding the analysis and refinement of health care data shall be immune from liability to any person, unless such information is false and the person providing it had actual knowledge of such falsity.
  4. All collected data of the CHMIS are declared to be privileged and shall not be public records nor be available for court subpoena or for discovery proceedings. The CHMIS, through a quality executive committee or similar committee, shall establish particular categories of health care data and refinement periods for each category of health care data, whether such data is collected data or releasable data. Releasable data shall be subject to the privileges and limitations of collected data for refinement periods as determined by the quality executive committee. When the refinement period has expired for a particular category of releasable data, then such immunities and privileges set forth in this subsection (e) shall no longer apply to the releasable data for such category. The disclosure of confidential, privileged quality assessment committee information to original sources during the refinement period, or as a report by the quality assessment committee to the quality executive committee, the CHMIS board of directors or another executive committee within the CHMIS, prior to the expiration of the refinement period does not constitute either a waiver of confidentiality or privilege. Nothing contained in this subsection (e) applies to records made in the regular course of business by a hospital or other provider of health care and information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented during the refinement period of the quality assessment committee.

Acts 1993, ch. 333, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Confidentiality of public records, § 10-7-504.

63-6-229. Consent to medical treatment by a minor.

Notwithstanding any other provision of law to the contrary, in the absence or unavailability of a spouse, any minor is authorized and empowered to consent for such minor's child, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law that may be suggested, recommended, prescribed or directed by a duly licensed physician.

Acts 1995, ch. 317, § 1.

Cross-References. Validity of a durable power of attorney for health care given to a nonparent, see § 34-6-216.

63-6-230. Inactive licenses to perform pro bono services.

The board of medical examiners shall establish by rule an inactive license category that allows physicians to perform services without compensation only for those persons receiving services from organizations that have received a determination of exemption under § 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)). Such inactive license category shall not authorize any other practice of medicine.

Acts 1997, ch. 345, § 3.

63-6-231. Transfer of patient medical information outside the state.

  1. The transfer of patient medical information to a person in another state who is not licensed to practice medicine or osteopathy in the state of Tennessee, using any electronic, telephonic or fiber optic means or by any other method, constitutes the practice of medicine or osteopathy if such information is employed to diagnose and/or treat, any person physically located within the state of Tennessee.
  2. Notwithstanding subsection (a) to the contrary, the transfer of such information shall not constitute the practice of medicine if:
    1. Such information is to be used by a medical doctor or doctor of osteopathy licensed in Tennessee;
    2. Such information is to be used for a second opinion requested by a Tennessee licensed medical doctor or doctor of osteopathy; provided, no charges are assessed for such second opinion;
    3. Such information is to be used by an out-of-state physician for treatment of a person who is seeking medical treatment out of Tennessee;
    4. Such information is used to determine if such patient is covered by insurance;
    5. Such information is to be used by physicians in another state to provide occasional academic consultations to a medical school located in Tennessee; or
    6. Such information is used by insurance or related companies for risk evaluation, utilization review, claims processing and/or evaluation of claimant's rehabilitation, including establishing and administering rehabilitation plans. The establishing and administering of such rehabilitation plans shall not include the diagnosis and/or treatment of any person physically located within the state of Tennessee as prohibited by subsection (a).
  3. This section shall not apply to research hospitals, as defined in § 63-6-204(f)(7).

Acts 1998, ch. 1017, §§ 1, 2.

63-6-232. Disciplinary complaints against chelation therapist.

All disciplinary complaints filed against a chelation therapist shall be judged by the standard of medical care in the community where such complaint originated.

Acts 2001, ch. 296, § 1.

63-6-233. Continuing medical education.

  1. Any person licensed to practice medicine in this state shall complete continuing medical education as required by the board of medical examiners. The board of medical examiners may establish waivers from such continuing medical education requirements and exemptions for certain licensees through rules and regulations.
  2. The board of medical examiners shall establish the continuing medical educational requirements, waivers and exemptions through rules and regulations promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2001, ch. 320, § 1.

63-6-234. Physicians serving as United States public health service commissioned officers.

A physician serving as a United States public health service commissioned officer who is trained as a national health service corps ready responder shall be authorized to practice medicine at federally qualified health centers while pursuing licensure as provided in this part under the following conditions:

  1. The physician has first filed an application for licensure as provided in this part;
  2. The physician, prior to commencing practice, submits a written statement to the board that all of the physician's medical licenses, including the authority to practice in United States public health service, are unencumbered by disciplinary actions, unresolved disciplinary complaints or unresolved health care liability lawsuits; and
  3. The physician timely complies with all board rules governing the application process and immediately ceases practicing medicine until a license is subsequently granted should the initial licensure application be closed either for failure to provide timely required information or is denied by the board.

Acts 2003, ch. 43, § 1; 2012, ch. 798, § 40.

Cross-References. Licensees in armed forces or public health service, §  63-1-110.

63-6-235. Special volunteer license for practice in free health clinic — Exemption from fees — Renewal.

  1. A physician licensed pursuant to this chapter under a special volunteer license who is a medical practitioner, as defined by § 63-1-201, engaged in practice at a free health clinic shall not be subject to license fees under this chapter. The board of medical examiners may issue a special volunteer license, as such license is defined in § 63-1-201, to qualified applicants without fee or charge. Such license shall be for a period of two (2) years and may be renewed on a biennial basis.
  2. Notwithstanding any other provision of this chapter to the contrary, a retired or inactive physician may apply for and receive a special volunteer license for practice only in volunteer service at benevolent or humanitarian service project locations outside of the state. The board of medical examiners is authorized to promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this section.

Acts 2004, ch. 579, § 2; 2005, ch. 250, § 1.

Cross-References. Retirement, §§  63-1-111, 63-6-210.

63-6-236. Drug prescriptions.

  1. Any handwritten prescription order for a drug prepared by a physician or surgeon who is authorized by law to prescribe a drug must be legible so that it is comprehensible by the pharmacist who fills the prescription. The handwritten prescription order must contain the name of the prescribing physician or surgeon, the name and strength of the drug prescribed, the quantity of the drug prescribed, handwritten in letters or in numerals, instructions for the proper use of the drug and the month and day that the prescription order was issued, recorded in letters or in numerals or a combination thereof. The prescribing physician or surgeon must sign the handwritten prescription order on the day it is issued, unless the prescription order is:
    1. Issued as a standing order in a hospital, a nursing home or an assisted care living facility as defined in § 68-11-201; or
    2. Prescribed by a physician or surgeon in the department of health or local health departments or dispensed by the department of health or a local health department as stipulated in § 63-10-205.
  2. Any typed or computer-generated prescription order for a drug issued by a physician or surgeon who is authorized by law to prescribe a drug must be legible so that it is comprehensible by the pharmacist who fills the typed or computer-generated prescription order. The prescription order must contain the name of the prescribing physician or surgeon, the name and strength of the drug prescribed, the quantity of the drug prescribed, recorded in letters or in numerals, instructions for the proper use of the drug and the month and day that the typed or computer-generated prescription order was issued, recorded in letters or in numerals or a combination thereof. The prescribing physician or surgeon must sign the typed or computer-generated prescription order on the day it is issued, unless the prescription order is:
    1. Issued as a standing order in a hospital, nursing home or an assisted care living facility as defined in § 68-11-201; or
    2. Prescribed by a physician or surgeon in the department of health or local health departments or dispensed by the department of health or a local health department as stipulated in § 63-10-205.
  3. Nothing in this section shall be construed to prevent a physician or surgeon from issuing a verbal prescription order.
    1. All handwritten, typed or computer-generated prescription orders must be issued on either tamper-resistant prescription paper or printed utilizing a technology that results in a tamper-resistant prescription that meets the current centers for medicare and medicaid service guidance to state medicaid directors regarding § 7002(b) of the United States Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007, P.L. 110-28, and meets or exceeds specific TennCare requirements for tamper-resistant prescriptions.
    2. Subdivision (d)(1) shall not apply to prescriptions written for inpatients of a hospital, outpatients of a hospital where the doctor or other person authorized to write prescriptions, writes the order into the hospital medical record and then the order is given directly to the hospital pharmacy and the patient never has the opportunity to handle the written order, a nursing home or an assisted care living facility as defined in § 68-11-201 or inpatients or residents of a mental health hospital or residential facility licensed under title 33 or individuals incarcerated in a local, state or federal correctional facility.

Acts 2004, ch. 678, § 5; 2005, ch. 12, § 3; 2008, ch. 1035, §§ 4, 9; 2010, ch. 795, § 12; 2013, ch. 74, § 4.

Compiler's Notes. Acts 2004, ch. 678, § 1 provided that the title of the act is and may be cited as the “Medication Error Reduction Act of 2004.”

Acts 2004, ch. 678, § 2 provided that it is the intent of the general assembly to create a uniform standard that health care providers must follow in issuing written or electronic prescription orders. This standard is intended to reduce medication related errors, which represent a major source of medical errors in the health care system. The general assembly finds that reducing medical errors will result in greater safety for patients as well as cost savings for the health care system in this state. By adopting these standards, the general assembly intends to promote medical safety for all patients who are issued drug prescriptions in this state.

Acts 2004, ch. 678, § 11 provided that nothing in the act shall be construed as limiting any practitioner’s or pharmacist’s ability to order the use of or distribute non-prescription drugs or devices otherwise in accordance with applicable law.

Acts 2004, ch. 678, § 12 provided that nothing in the act shall be construed as limiting any professional nurse’s ability to issue drugs in accordance with the provisions of § 63-7-124.

Acts 2004, ch. 678, § 13 provided that the department of health, division of health related boards and the board of pharmacy, are authorized to promulgate uniform rules to effect the purposes of this act in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The power and duty to enforce those rules shall be vested in the various boards that regulate health care providers affected by the act, in accordance with § 63-1-122 [repealed].

Acts 2004, ch. 678, § 14 provided that the act shall not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before July 1, 2004.

Acts 2010, ch. 795, § 8 provided that nothing in the act shall be construed as limiting any practitioner's or pharmacist's ability to order the use of or distribute non-prescription drugs or devices otherwise in accordance with applicable law.

Acts 2010, ch. 795, § 10 provided that nothing in the act shall be construed as limiting any professional nurse's ability to issue drugs in accordance with the provisions of § 63-7-124.

Acts 2010, ch. 795, § 11 provided that the department of health, division of health related boards and the board of pharmacy, are authorized to promulgate uniform rules to effect the purposes of the act in accordance with title 4, chapter 5. The power and duty to enforce those rules shall be vested in the various boards that regulate healthcare providers affected by the act, in accordance with § 63-1-122 [repealed].

Acts 2010, ch. 795, § 19 provided that the act shall not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before January 1, 2011.

63-6-237. Radiologist assistants.

  1. In addition to the practice permitted by § 63-6-902, a radiologist may utilize the services of a radiologist assistant to practice radiology assistance under the supervision of such radiologist to the extent not prohibited by § 63-6-902.
  2. The board of medical examiners shall define the scope of practice of a radiologist assistant and the educational qualifications necessary to practice as a radiologist assistant by rules promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Such rules shall be consistent with guidelines adopted by the American College of Radiology, the American Society of Radiologic Technologists and the American Registry of Radiologic Technologists (ARRT).
  3. A radiologist assistant must be a radiologic technologist certified by the board of medical examiners under § 63-6-902 and certified and registered with ARRT and credentialed to provide radiology services under the supervision of a radiologist.
  4. A radiologist assistant may not interpret images, make diagnoses or prescribe medications or therapies.
  5. On or after July 1, 2004, a radiology practitioner assistant shall only be known as a radiologist assistant.
  6. On or after July 1, 2008, any person seeking to become a radiologist assistant in Tennessee must have completed an advanced academic program encompassing a nationally recognized radiologist assistant curriculum, as well as completed a radiologist directed clinical preceptorship, all culminating in a baccalaureate degree.
  7. Any person who, on or before December 31, 2008, was practicing as a radiology practitioner assistant in Tennessee and who submits satisfactory proof of that practice to the board, along with an application and the certification fee on or before December 31, 2009, shall be entitled to be certified by the board as a radiologist assistant without having to meet the educational, certification, registration, credentialing or examination requirements of subsections (b) and (c) and rules promulgated pursuant to subsections (b) and (c).

Acts 2004, ch. 704, § 1; 2007, ch. 393, § 1; 2008, ch. 1003, §§ 1-3.

Compiler's Notes. References to “63-6-224” throughout this section were changed to “63-6-902” in light of the transfer of section 63-6-224 to 63-6-902 by the Code Commission in 2016, effective January 1, 2017.

63-6-238. Notice to patients of departure.

Psychiatrists are not required to notify patients that were treated by them at community mental health centers, as defined in § 33-1-101, of their departure from such community mental health centers. Patient records shall remain with the community mental health centers. The transfer of patients' records shall be in compliance with standards set by state and federal law.

Acts 2005, ch. 53, § 2.

Code Commission Notes.

Acts 2010, ch. 904, § 2 purported to add a new section concerning remedial action against persons licensed to practice medicine who are required to register as a sexual offender or violent sexual offender in order to assure safety as § 63-6-238. Since Acts 2005, ch. 53, § 3 added § 63-6-238, ch. 904, § 2 was added as § 63-6-240.

63-6-239. [Repealed.]

Acts 2010, ch. 795, § 3; repealed by Acts 2018, ch. 883, § 5, effective January 1, 2019.

Compiler's Notes. Section 63-6-239 concerning prescriptions for Schedule II controlled substances is repealed by Acts 2018, ch. 883, § 5, effective January 1, 2019.

Acts 2018, ch. 883, § 10 provided that the commissioner of health is authorized to promulgate rules to effectuate the purposes of the act. All rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in Tennessee Code Annotated, title 4, chapter 5.

Former § 63-6-239 concerned prescriptions for Schedule II controlled substances.

63-6-240. Remedial action against persons licensed to practice medicine who are required to register as a sexual offender or violent sexual offender in order to assure safety.

    1. The general assembly finds that a person who is licensed to practice medicine in this state and who is required to register with the Tennessee bureau of investigation (TBI) as a sexual offender or violent sexual offender is injurious to the public safety, health and welfare as well as the public's perception of and confidence in the medical profession.
    2. The general assembly further finds that the strongest remedial action possible should be taken against a person's license to practice medicine when such person has been convicted of a sexual offense, or violent sexual offense as both are defined in title 40, chapter 39, part 2, and continues to engage in the practice of medicine in this state after such conviction.
    3. Enactment of this section by the general assembly is declared to be a remedial action necessary to assure the safety of the citizens of this state and their faith and confidence in the medical profession. This section is not to be construed to be punitive against any person to whom this section may apply.
  1. As used in this section:
    1. “Registering agency” means a sheriff's office, municipal police department, metropolitan police department, campus law enforcement agency, the Tennessee department of correction, a private contractor with the Tennessee department of correction or the board with whom sexual offenders and violent sexual offenders are required to register under title 40, chapter 39, part 2;
    2. “Registry” means the registry created by the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, codified in title 40, chapter 39, part 2;
    3. “Sexual offense” means those offenses defined as “sexual offenses” in § 40-39-202; and
    4. “Violent sexual offense” means those offenses defined as “violent sexual offenses” in § 40-39-202.
    1. If the registering agency of a person who registers as a sexual offender or violent sexual offender, as defined by title 40, chapter 39, part 2, has reason to believe that such person is licensed to practice medicine in this state pursuant to this chapter, the registering agency shall prepare and forward to the board of medical examiners a certified copy of the offender's TBI registration form within thirty (30) days of the sexual offender's or violent sexual offender's registration.
      1. Upon receipt of the form, or upon receipt of credible evidence from any other source indicating that a person licensed to practice medicine in this state has been convicted of a sexual offense or a violent sexual offense, the board shall investigate to determine whether such person is a sexual offender or violent sexual offender, as defined by § 40-39-202, and a person licensed to practice medicine pursuant to this chapter.
      2. If the board determines that the person named on the TBI registration form, or by another source, is a person licensed to practice medicine in this state pursuant to this chapter and the offense for which the person is required to register is a violent sexual offense, such conviction constitutes a material change in the person's licensure qualifications, and the board shall conduct a hearing at which the person may present evidence that the information received by the board is incorrect. If, after the hearing, the board finds the person was convicted of a violent sexual offense and is required to register with the TBI as a violent sexual offender, the board shall revoke the person's license to practice medicine in accordance with § 63-6-216. The person may appeal the ruling of the board as provided in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, but such appeal shall be limited to the issue of whether or not such person has been convicted of a violent sexual offense and is therefore required to register as a violent sexual offender. The license revocation shall remain in effect during the pendency of any appeal.
      3. If the person licensed to practice medicine is required to register as a sexual offender, the board shall conduct a hearing to determine the extent to which the person poses a continuing risk to patients; the degree to which the person has been rehabilitated; what treatment, if any, the person has undergone; the areas of medicine in which the person is qualified to engage without endangering the safety of patients; and any other factor the board deems relevant in determining the outcome most likely to protect the public while considering the interests of the person. At the conclusion of the hearing, the board may:
        1. Revoke the license of the person; or
        2. If the board does not revoke the license, it may place such conditions on the person's license as it deems appropriate and advisable to protect the interests and safety of the public; provided, the board shall place the following restrictions on the person's license:
          1. Prohibit the physician from engaging in direct patient care or contact; and
          2. Such other conditions and limitations on the person's license as the board deems advisable.
        1. If a person's license to practice medicine was revoked, suspended or conditioned pursuant to subdivision (c)(2)(C) because such person was convicted of a sexual offense and such person applies for and is granted termination of sexual offender registry requirements pursuant to § 40-39-207, such person may petition the board for reinstatement of the person's license to practice medicine.
        2. If a petition is filed for reinstatement pursuant to this subsection (c), the board shall hear the petition within thirty (30) calendar days of its receipt. At the hearing the board shall use the same analysis set out in subdivision (c)(2)(C) to determine whether the person should be permitted to practice medicine in this state under any circumstances.
        3. If the written findings of the board are that the person is no longer a threat to public safety and could return to the practice of medicine in some capacity, it may:
          1. Reinstate the person's license without conditions;
          2. Reinstate the person's license with any or all the conditions available under subdivision (c)(2)(C); or
          3. Remove some or all of the restrictions or conditions that were placed on a license made conditional pursuant to subdivision (c)(2)(C).
        4. If the written findings of the board are that the person could not safely return to the practice of medicine, it shall deny the person's petition and set a date certain after which the person may repetition the board.
      4. If the board receives credible evidence from any source indicating that the person is in violation of the restrictions placed upon such person's license to practice medicine pursuant to this section, the board shall conduct a hearing as provided in subdivision (c)(2)(C). If at the conclusion of the hearing, the board finds that the person is in violation of the restrictions placed upon the person's license in a material respect or in a repetitive manner, the board shall revoke the license. If the board finds that the violation is minor or isolated, it may place other conditions on the person's license, such as increased reporting to the board by both the person and the person's employer or contractor, if any.
      5. This subdivision (c)(2) shall apply regardless of whether commission of the sexual offense or violent sexual offense resulting in the person being required to register as a sexual or violent sexual offender occurred prior to or subsequent to the date the person was licensed to practice medicine in this state.
  2. By September 1, 2010, the board shall compare or have compared a list of all persons who are licensed to practice medicine in this state against the list of persons who are registered as sexual offenders or violent sexual offenders pursuant to title 40, chapter 39, part 2. If it appears from this comparison that the same name appears on both lists, the board shall request a certified copy of that person's TBI registration form. Upon receipt of the form from the TBI, the board shall conduct an investigation to determine if the person licensed to practice medicine in this state is the same person who is a registered sexual offender or violent sexual offender. Such investigation shall take no more than thirty (30) days. If the board determines that the person whose name appears on both lists is the same person, it shall immediately take action as provided in subdivision (c)(2). If the person whose name appears on both lists is not the same person, the board shall take no action.
    1. On July 1, 2010, the board shall determine, before granting a license to practice medicine in this state, or renewing an existing license, if the person who is applying for such a license is registered or is required to be registered as a sexual offender or violent sexual offender pursuant to title 40, chapter 39, part 2.
    2. If any applicant for a license to practice medicine in this state is a registered violent sexual offender or is required to register as a violent sexual offender, the board shall deny the application. If any person who is licensed to practice medicine in this state and is seeking to renew such license is a registered violent sexual offender or is required to register as a violent sexual offender, the board shall revoke the physician's license.
    3. If any applicant to the board is registered as a sexual offender or is required to register as a sexual offender, the board shall consider whether the applicant poses a risk to patients; the degree to which the person has been rehabilitated; what treatment, if any, the person has undergone; the areas of medicine in which the applicant is qualified to engage without endangering the safety of patients; and any other factor the board deems relevant in determining what conditions are most likely to protect the public while considering the interests of the applicant. The board may deny the application or may place such conditions upon the applicant as are necessary to protect the public. If the board grants the license, at a minimum the board shall prohibit the applicant from engaging in direct patient care or contact for so long as the applicant is required to register as a sexual offender.

Acts 2010, ch. 904 , § 2.

Code Commission Notes.

Acts 2010, ch. 904, § 2 purported to add a new section concerning remedial action against persons licensed to practice medicine who are required to register as a sexual offender or violent sexual offender in order to assure safety as § 63-6-238. Since Acts 2005, ch. 53, § 3 added § 63-6-238, ch. 904, § 2 was added as § 63-6-240.

Compiler's Notes. Acts 2010, ch. 904, § 3 provided that the act, which amended § 63-6-214(b)(10) and enacted § 63-6-240, shall apply to any person licensed to practice medicine in this state, whether such license was issued prior to or after July 1, 2010, and to any person applying to practice medicine in this state, whether the application was filed prior to or July 1, 2010.

63-6-241. Physical presence of physician required for abortion.

Notwithstanding § 63-6-209(b) or any other provision of this chapter, no physician licensed under this chapter or chapter 9 of this title shall perform or attempt to perform any abortion, including a medically induced abortion, or shall prescribe any drug or device intended to cause a medical abortion, except in the physical presence of the pregnant woman. No drug or device intended to cause a medical abortion shall be administered or dispensed to a pregnant woman except in the physical presence of her physician

Acts 2011, ch. 434, § 1; 2012, ch. 672, § 1.

Code Commission Notes.

Acts 2012, ch. 961, § 4 purported to enact a new § 63-6-241. Section 63-6-241 was previously enacted by Acts 2011, ch. 434, § 1, as amended by Acts 2012, ch. 672, § 1; § 63-6-242 was previously enacted by Acts 2012, ch. 818, § 1; and § 63-6-243 was previously enacted by Acts 2012, ch. 836, § 1; therefore, Acts 2012, ch. 961, § 4 was enacted as § 63-6-244 by authority of the code commission.

63-6-242. Employee or contractor's unauthorized use of medical doctor's DEA registration number to write prescriptions.

  1. Any medical doctor licensed pursuant to this chapter who has reason to believe that an employee or contractor of the doctor or the doctor's firm, partnership or corporation has used the doctor's federal drug enforcement administration (DEA) registration number without authorization to write prescriptions may make a report to a law enforcement agency.
  2. Any medical doctor, firm, partnership, or corporation making a report pursuant to subsection (a) shall be immune from any civil liability for making such report when made in good faith.

Acts 2012, ch. 818, § 1.

Code Commission Notes.

Acts 2012, ch. 836, § 1 purported to enact § 63-6-242. Section 63-6-242 was previously enacted by Acts 2012, ch. 818, § 1; therefore, Acts 2012, ch. 836, § 1 was enacted as § 63-6-243 by authority of the code commission.

Cross-References. Reporting persons obtaining or attempting to obtain controlled substances, § 53-11-309.

63-6-243. Hormone replacement therapy.

    1. “Hormone replacement therapy clinic” or “hormone therapy clinic” means a medical office in which the clinicians are primarily engaged in hormone replacement or supplementation therapy or a medical office which holds itself out to the public as being primarily or substantially engaged in hormone replacement therapy. For the purposes of this definition, “primarily engaged” means that a majority of the clinic's patients receive hormone replacement therapy and may be further defined by the board by rule. “Hormone replacement therapy clinic” does not mean a medical office in which the clinicians are primarily engaged in obstetrics and gynecology (OB/GYN), urology or primary care.
    2. “Hormone replacement therapy” or “hormone therapy” means the branch of the practice of medicine whereby the patient is treated with medications that include, but are not limited to, creams or natural formulas taken through the skin, under the tongue, in subcutaneous pellets, or orally that contain hormones that have the same bioidentical or similar chemical formula as those produced naturally in the human body or that the provider thinks or claims to be similar or identical, but shall not include the treatment of patients with birth control pills.
  1. In hormone replacement therapy clinics:
    1. All hormone replacement therapy shall be performed by a physician licensed under this chapter or chapter 9 of this title, or delegated by such physician to a certified nurse practitioner licensed pursuant to chapter 7 of this title or a physician assistant licensed pursuant to chapter 19 of this title; and
    2. If hormone replacement therapy is delegated, the supervising physician shall ensure that written protocols are developed for licensees to whom hormone replacement therapy is delegated, that such protocols are updated as necessary and that the patient is informed of both the name and contact information of the supervising physician and an indication of whether the physician is available onsite or remotely.
  2. A physician supervising hormone replacement therapy in a hormone replacement therapy clinic shall ensure that for each patient all of the following requirements are met:
    1. Prior to the initial hormone replacement therapy or course of treatments, an appropriate physical examination shall be conducted;
    2. An appropriate medical history shall be taken and documented on the patient;
    3. A written order for hormone replacement therapy shall be entered by the treating provider in the patient's medical record documenting the diagnosis and medical reason for the patient's need for hormone replacement therapy. If the treating provider is not a physician, the supervising physician shall make a personal review of the historical, physical and therapeutic data gathered by the treating provider and shall so certify the review in the patient's chart within seven (7) days of the patient being served;
    4. The patient gives written consent for hormone replacement therapy, which includes notification of possible complications and reasonable expectations and any applicable FDA warnings associated with any part of the therapy; and
    5. The supervising physician shall be immediately notified upon discovery of a complication.

Acts 2012, ch. 836, § 1.

Code Commission Notes.

Acts 2012, ch. 836, § 1 purported to enact § 63-6-242. Section 63-6-242 was previously enacted by Acts 2012, ch. 818, § 1; therefore, Acts 2012, ch. 836, § 1 was enacted as § 63-6-243 by authority of the code commission.

63-6-244. Interventional pain management.

  1. A physician licensed pursuant to this chapter may only practice interventional pain management if the licensee is either:
    1. Board certified through the American Board of Medical Specialties (ABMS) or the American Board of Physician Specialties (ABPS)/American Association of Physician Specialists (AAPS) in one of the following medical specialties:
      1. Anesthesiology;
      2. Neurological surgery;
      3. Orthopedic surgery;
      4. Physical medicine and rehabilitation;
      5. Radiology; or
      6. Any other board certified physician who has completed an ABMS subspecialty board in pain medicine or completed an ACGME-accredited pain fellowship;
    2. A recent graduate in a medical specialty listed in subdivision (a)(1) not yet eligible to apply for ABMS or ABPS/AAPS board certification; provided, that there is a practice relationship with a physician who meets the requirements of subdivision (a)(1) or an osteopathic physician who meets the requirements of § 63-9-121(a)(1);
    3. A licensee who is not board certified in one of the specialties listed in subdivision (a)(1) but is board certified in a different ABMS or ABPS/AAPS specialty and has completed a post-graduate training program in interventional pain management approved by the board;
    4. A licensee who serves as a clinical instructor in pain medicine at an accredited Tennessee medical training program; or
    5. A licensee who has an active pain management practice in a clinic accredited in outpatient interdisciplinary pain rehabilitation by the commission on accreditation of rehabilitation facilities or any successor organization.
  2. For purposes of this section, “interventional pain management” is the practice of performing invasive procedures involving any portion of the spine, spinal cord, sympathetic nerves of the spine or block of major peripheral nerves of the spine in any setting not licensed under title 68, chapter 11.
  3. The board is authorized to define through rulemaking the scope and length of the practice relationship established in subdivision (a)(2).
  4. A physician who provides direct supervision of an advanced practice registered nurse or a physician's assistant pursuant to § 63-7-126 or § 63-19-107 must meet the requirements set forth in subdivision (a)(1) or (a)(3).
  5. A physician who violates this section is subject to disciplinary action by the board pursuant to § 63-6-214, including, but not limited to, civil penalties of up to one thousand dollars ($1,000) for every day this section is violated.

Acts 2012, ch. 961, § 4; 2016, ch. 980, § 9.

Code Commission Notes.

Acts 2012, ch. 961, § 4 purported to enact a new § 63-6-241. Section 63-6-241 was previously enacted by Acts 2011, ch. 434, § 1, as amended by Acts 2012, ch. 672, § 1; § 63-6-242 was previously enacted by Acts 2012, ch. 818, § 1; and § 63-6-243 was previously enacted by Acts 2012, ch. 836, § 1; therefore, Acts 2012, ch. 961, § 4 was enacted as § 63-6-244 by authority of the code commission.

Attorney General Opinions. Administering spinal injections in unlicensed settings not permitted unless licensed physician is board certified or meets one of the other statutory requirements.  OAG 14-49, 2014 Tenn. AG LEXIS 51 (4/23/14)

63-6-245. Notice to patients of determination that patient has dense or extremely dense breasts.

  1. As used in this section, “physician” means an individual authorized by this chapter to practice medicine and surgery or osteopathic medicine and surgery pursuant to chapter 9 of this title.
  2. If a physician has determined, after a mammogram is performed, that a patient has dense breasts or extremely dense breasts, based on the breast imaging reporting and data system established by the American College of Radiology, the facility where the mammogram was performed shall provide the following notice to the patient:

    Your mammogram shows that you have dense breast tissue. Dense breast tissue is common. However, dense breast tissue can hide breast cancer, so that it may not be seen on routine mammography. It may also be associated with an increased risk of developing breast cancer. You should discuss these results with your doctor to determine if additional tests might be helpful. A report of your mammogram results, which contains information about your breast density, has been sent to your doctor's office.

  3. This section shall become operative on January 1, 2014. Nothing in this section shall be construed to create or impose liability for failing to comply with the requirements of this section. Nothing in this section shall be deemed to create a duty of care or other legal obligation beyond the duty to provide notice as set forth in this section. Nothing in this section shall be deemed to require a notice that is inconsistent with the federal Mammography Quality Standards Act (42 U.S.C. § 263b) or any regulations promulgated pursuant to that act.

Acts 2013, ch. 387, § 1; 2018, ch. 750, § 1.

Compiler's Notes. Acts 2013, ch. 387, § 2 provided that the act, which enacted this section, may be known and cited as the “Breast Cancer Prevention Act.”

Amendments. The 2018 amendment, effective July 1, 2018, rewrote the notice in (b) which read: “Your mammogram shows that your breast tissue is dense. Dense breast tissue is common and is not abnormal. However, dense breast tissue can make it harder to evaluate the results of your mammogram and may also be associated with an increased risk of breast cancer. This information about the results of your mammogram is given to you to raise your awareness and to inform your conversations with your doctor. Together, you can decide which screening options are right for you. A report of your results was sent to your physician.”

Effective Dates. Acts 2018, ch. 750, § 2. July 1, 2018.

63-6-246. Maintenance of licensure or certification not required.

  1. As used in this section:
    1. “Continuing medical education” means continued postgraduate medical education required by the board of medical examiners intended to provide medical professionals with knowledge of new developments or reinforcement of previously learned information in their field;
    2. “Maintenance of certification” means any process requiring periodic recertification examinations or other activities to mainta