TCA § 63-5-124 — Grounds for denial, suspension or revocation of licenses — Examinations — Investigations of reports — Civil penalties — Costs — Oaths and subpoenas

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: Unprofessional, dishonorable or unethical conduct; 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; 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; Gross health care liability or a pattern of continued or repeated health care liability, ignorance, negligence or incompetence in the course of professional practice; 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; 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; 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; 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; Engaging in the practice of dentistry, dental hygiene or as a registered dental assistant when mentally or physically unable to safely do so; 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; Division of fees or agreeing to split or divide fees received for professional services with any person for bringing or referring a patient; 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; 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; Claiming to the public to be a specialist in some particular branch of dentistry without being certified by the board as such; 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; Having work done by or obtaining work from a dental laboratory without issuing a written work order as provided in § 63-5-108; 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; 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; 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; 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; 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; 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 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. 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. 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. 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. In assessing a civil penalty pursuant to this chapter, the board should consider the following: The harm or potential harm of the violation to the public health and welfare; The extent to which the public was exposed to such harm or potential harm; The rate, duration and severity of the violations; The value of the penalty as a deterrent to future violations; Attempts by the violator to mitigate the harm to the public; and Such other specific criteria as the board may wish to establish by duly promulgated regulation. 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. 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. 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. 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. 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. 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. 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.