TCA § 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

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. 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. 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. As used in this section: “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; “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; “Sexual offense” means those offenses defined as “sexual offenses” in § 40-39-202; and “Violent sexual offense” means those offenses defined as “violent sexual offenses” in § 40-39-202. 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. 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. 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. 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: Revoke the license of the person; or 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: Prohibit the physician from engaging in direct patient care or contact; and Such other conditions and limitations on the person's license as the board deems advisable. 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. 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. 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: Reinstate the person's license without conditions; Reinstate the person's license with any or all the conditions available under subdivision (c)(2)(C); or Remove some or all of the restrictions or conditions that were placed on a license made conditional pursuant to subdivision (c)(2)(C). 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. 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. 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. 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. 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. 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. 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.