The opinion
09/06/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 10, 2019 Session
TENNESSEE DEPARTMENT OF HEALTH ET AL. V. NORMA J. SPARKS
Appeal from the Chancery Court for Davidson County
No. 17-1064-III Ellen H. Lyle, Chancellor
No. M2018-01317-COA-R3-CV;
No. M2018-02113-COA-R3-CV
The Department of Health reprimanded and issued civil penalties against a physician
assistant for prescribing controlled substances under the supervision of a physician who
lacked DEA registration, failing to register with the Controlled Substances Monitoring
Database (“CSMD”), and failing to check the database prior to prescribing controlled
substances. On a petition for review, the chancery court reversed the Department’s
decision. We conclude that the Department’s interpretation of the Physician Assistants
Act is contrary to law and improperly places the duty on the physician assistant to
determine whether a supervising physician is in compliance with an unwritten
requirement that the physician be registered with the DEA to be able to supervise a
physician assistant who prescribes controlled substances. Furthermore, the record does
not contain substantial and material evidence that the Department provided the physician
assistant with the statutorily-required notice that either registration with the CSMD or
checking with the CSMD was required. We affirm the decision of the chancery court in
all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.
Herbert H. Slatery, III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, Sue A. Sheldon, Senior Assistant Attorney General, for the appellant, State of
Tennessee.
Charles K. Grant and Matthew F. Smith, Nashville, Tennessee, for the appellee, Norma J.
Sparks.
Andrew Yarnell Beatty, Nashville, Tennessee, for the amicus curiae, Tennessee Medical
Association.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Norma J. Sparks (“Sparks”) is a physician assistant (“PA”), a type of physician
extender authorized to practice medicine only under the supervision of a licensed
physician. See Tenn. Code Ann. § 63-19-106(a)(1). Beginning in November 2010,
Sparks worked as a physician assistant at Beersheba Springs Medical Clinic (“Clinic”).1
During the time period relevant to this case (November 13, 2014 through August 2016),
Sparks’s only supervising physician was H. Garrett Adams, M.D., a licensed physician in
good standing in Tennessee. At all times relevant to this case, Sparks held a valid DEA
(“Drug Enforcement Administration”) registration. While serving as Sparks’s
supervising physician, Dr. Adams did not have a valid DEA registration and did not
prescribe controlled substances. During the relevant time period, Sparks worked at the
Clinic on Tuesdays and Thursdays. She worked at no other location as a physician
assistant. While under Dr. Adams’s supervision, Sparks wrote prescriptions for
controlled substances on at least fifteen days in 2015 and at least fifteen days in 2016.
Sparks was not registered with the CSMD at any time until November 2016.
According to her testimony, she never received notice from the State of the requirement
to register with the CSMD, and the State has no record that it notified her of the need to
register. Sparks first learned of the registration requirement in October 2016 at a
continuing education course. She registered with the CSMD in November 2016 and has
been registered since then.
On February 8, 2017, the Tennessee Department of Health’s Division of Health
Related Boards (“Department”) filed a Notice of Charges and Memorandum for
Assessment of Civil Penalties against Sparks (“Notice”). The Notice alleged that
Sparks’s actions violated the following statutory and regulatory provisions2:
(1) Tenn. Code Ann. § 63-19-106 (requiring a PA to work under the
supervision of a licensed physician);
(2) Tenn. Code Ann. § 63-19-107(2)(A) (authorizing a supervising
physician to delegate to PA authority to prescribe controlled substances);
1
Beginning with this statement, the first two paragraphs of our factual summary are based upon the
parties’ stipulations of fact submitted prior to the administrative hearing before the Tennessee Board of
Medical Examiners’ Committee on Physician Assistants.
2
The text of these statutes and regulations will be set forth below as relevant in the analysis section of the
opinion.
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(3) Tenn. Comp. R. & Regs. 0880-03-.02(1) (stating that services delegated
to PA must “form a usual component of the supervising physician’s scope
of practice” and be provided under the physician’s supervision);
(4) Tenn. Comp. R. & Regs. 0880-03-.21 (providing certain requirements
for PA’s authorized by their supervising physician to prescribe drugs);
(5) Tenn. Code Ann. § 63-19-107(2)(B)(i)-(ii) (requiring PA with authority
from supervising physician to prescribe drugs to file with the Committee on
Physician Assistants a notice including certain information; and prohibiting
a PA from prescribing certain controlled substances unless specifically
authorized by the formulary or expressly approved by the supervising
physician);
(6) Tenn. Code Ann. § 63-19-106 (stating that services PA may provide
shall be set forth in written protocol developed by supervising physician
and PA and that protocol must meet described requirements);
(7) Tenn. Code Ann. § 53-10-305(a) (stating that healthcare practitioners
who prescribe or dispense controlled substances on more than fifteen days
in a calendar year and are required to have a DEA registration must register
in the CSMD); and
(8) Tenn. Code Ann. § 53-10-310(e)(1) (requiring that healthcare
practitioners check the CSMD before prescribing a controlled substance at
the beginning of a new treatment episode and then at least annually when
that controlled substance remains part of the treatment).
The Notice further stated that a contested case hearing would be conducted before the
Tennessee Board of Medical Examiners’ Committee on Physician Assistants
(“Committee”) to determine whether Sparks violated the provisions identified in the
Notice and the amount of any civil penalties to be assessed against her.
The Committee heard the contested case on July 10, 2017. In its final order
entered on August 15, 2017, the Committee concluded that Sparks violated the following
provisions: Tenn. Code Ann. § 63-19-107(2)(A) and Tenn. Comp. R. & Regs. 0880-03-
.02(1); and Tenn. Code Ann. §§ 53-10-305(a) and -310(e)(1). The Committee
reprimanded Sparks and ordered her to pay a civil penalty for each of the following three
violations:
Prescribing controlled substances under the supervision of a
physician who did not have a DEA registration and for whom
prescribing controlled substances was not a usual component of his
regular scope of practice
Failing to register for the CSMD despite being legally required to
do so
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Failing to check the CSMD before prescribing controlled
substances at the initiation of the new course of treatment for some
patients
Each civil penalty was a Type B civil penalty in the amount of $500.00, resulting in a
total civil penalty of $1500.00. The Committee also assessed Sparks with $2500.00 in
costs, the maximum amount allowable. The Board of Medical Examiners (“Board”)
ratified the Committee’s decision, which became effective on August 15, 2017.
Sparks filed a petition for judicial review in chancery court on October 2, 2017. In
a memorandum and order filed on June 21, 2018, the trial court granted Sparks’s petition
for review and reversed the administrative decision.
The Department appeals, raising the following issues: whether the trial court erred
in (1) reversing the decision of the licensing agencies that Sparks violated the Physician
Assistants Act by prescribing controlled substances without the statutorily-required
authorization; (2) reversing the decision of the licensing agencies that Sparks violated
Tenn. Code Ann. §§ 53-10-305(a) and 53-10-310(e)(1) when she failed to register for the
CSMD and failed to check the CSMD before prescribing controlled substances; and
awarding Sparks attorney fees and costs under Tenn. Code Ann. § 4-5-325. Sparks raises
three additional issues: (1) whether the Department’s unwritten requirement that a
supervising physician register with the DEA is unconstitutionally vague; (2) whether the
Board and the Committee acted in excess of their statutory authority when Sparks was
disciplined on the basis of violations outside of the Board’s and the Committee’s statutes
and regulations; and (3) whether the administrative law judge committed reversible error
in disallowing Sparks’s expert witnesses from testifying.
STANDARD OF REVIEW
Tennessee Code Annotated section 4-5-322(h) sets forth the standards that govern
our review of cases brought under the provisions of the Uniform Administrative
Procedures Act (“UAPA”). See Coal Creek Co. v. Anderson Cnty., 546 S.W.3d 87, 97-98
(Tenn. Ct. App. 2017). Tennessee Code Annotated section 4-5-322(h) states:
The court may affirm the decision of the agency or remand the case for
further proceedings. The court may reverse or modify the decision if the
rights of the petitioner have been prejudiced because the administrative
findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion; or
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(5)(A) Unsupported by evidence that is both substantial and material in the
light of the entire record.
(B) In determining the substantiality of evidence, the court shall take
into account whatever in the record fairly detracts from its weight, but the
court shall not substitute its judgment for that of the agency as to the weight
of the evidence on questions of fact.
Under the UAPA, this Court must apply the substantial and material evidence
standard to the agency’s factual findings. City of Memphis v. Civil Serv. Comm’n, 239
S.W.3d 202, 207 (Tenn. Ct. App. 2007). “Substantial and material evidence is ‘such
relevant evidence as a reasonable mind might accept to support a rational conclusion and
such as to furnish a reasonably sound basis for the action under consideration.’” Macon v.
Shelby Cnty. Gov’t Civil Serv. Merit Bd., 309 S.W.3d 504, 508 (Tenn. Ct. App. 2009)
(quoting Pruitt v. City of Memphis, No. W2004-01771-COA-R3-CV, 2005 WL 2043542,
at *7 (Tenn. Ct. App. Aug. 24, 2005)). It is “‘something less than a preponderance of the
evidence, but more than a scintilla or glimmer.’” Id. (quoting Wayne Cnty. v. Tenn. Solid
Waste Disposal Control Bd., 756 S.W.2d 274, 280 (Tenn. Ct. App.1988)).
The UAPA’s narrow standard of review for an administrative body’s factual
determinations “suggests that, unlike other civil appeals, the courts should be less
confident that their judgment is preferable to that of the agency.” Wayne Cnty., 756
S.W.2d at 279. This court cannot displace the agency’s judgment as to the weight of the
evidence even where there is evidence that could support a different result. Id.
ANALYSIS
I. Physician Assistants Act.
The Department takes the position that Sparks violated Tenn. Code Ann. § 63-19-
107(2)(A) and Tenn. Comp. R. & Regs. 0880-03-.02(1) when she prescribed controlled
substances under the supervision of a physician who did not have a DEA registration and
who did not prescribe controlled substances as a usual component of his scope of
practice. During the relevant period, Tenn. Code Ann. § 63-19-107(2)(A), part of the
Physician Assistant Act, provided as follows:
In accordance with rules adopted by the board and the committee, a
supervising physician may delegate to a physician assistant working under
the physician’s supervision the authority to prescribe and/or issue legend
drugs and controlled substances listed in Schedules II, III, IV, and V of title
39, chapter 17, part 4. The rules adopted prior to March 19, 1999, by the
board and the committee governing the prescribing of legend drugs by
physician assistants shall remain effective after March 19, 1999, and may
be revised from time to time as deemed appropriate by the board and the
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committee. The board and the committee may adopt additional rules
governing the prescribing of controlled substances by physician assistants.
A physician assistant to whom is delegated the authority to prescribe and/or
issue controlled substances must register and comply with all applicable
requirements of the drug enforcement administration.
The regulations regarding “scope of practice” associated with the Physician Assistants
Act provide as follows:
A physician assistant who holds state license in accordance with T.C.A. §
63-19-105 may provide selected medical/surgical services as outlined in a
written protocol according to T.C.A. § 63-19-106, and when such services
are within his skills. The services delegated to the physician assistant must
form a usual component of the supervising physician’s scope of practice.
Services rendered by the physician assistant must be provided under the
supervision, direction, and ultimate responsibility of a licensed physician
accountable to the Board of Medical Examiners or the Board of
Osteopathic Examination under the provision of T.C.A. § 63-19-109.
TENN. COMP. R. & REGS. 0880-03-.02(1). The Department asserts that the authority to
perform medical services must be delegated to a physician assistant by his or her
supervising physician and that a physician who has no authority to prescribe controlled
substances cannot delegate such authority to a physician assistant. Sparks argues that the
Department disciplined her for violating an unwritten requirement and that a committee
composed of physician assistants is not competent to determine a physician’s usual scope
of practice. She interprets the statute to mean that the supervising physician delegates to
the PA his or her general prescriptive authority, which includes the ability to prescribe
controlled substances if the PA registers with the DEA.
As the Department points out, this court must defer to an administrative agency’s
“interpretation of its own rules because the agency possesses special knowledge,
expertise, and experience with regard to the subject matter of the rule.” Pickard v. Tenn.
Water Quality Control Bd., 424 S.W.3d 511, 522 (Tenn. 2013) (citing Jackson Exp., Inc.
v. Tenn. Pub. Serv. Comm’n, 679 S.W.2d 942, 945 (Tenn. 1984)). An administrative
agency’s construction “of its own rules has ‘controlling weight unless it is plainly
erroneous or inconsistent with the regulation.’” Id. (quoting BellSouth Adver. & Publ’g
Corp. v. Tenn. Regulatory Auth., 79 S.W.3d 506, 514 (Tenn. 2002)). With respect to an
agency’s controlling statutes, however, the agency’s interpretation is a question of law
subject to de novo review. Id. at 523. Although an agency’s interpretation of its
controlling statutes is “‘entitled to consideration and respect,’” especially as to “‘doubtful
or ambiguous statutes,’” the agency’s interpretation is not binding on the courts. Id.
(quoting Nashville Mobilphone Co. v. Atkins, 536 S.W.2d 335, 340 (Tenn. 1976)).
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With respect to the proper interpretation of the Physician Assistants Act, Tenn.
Code Ann. §§ 63-19-101–115, and the regulation at issue in this case, we find ourselves
in agreement with the reasoning of the trial court. The trial court made the following
statement regarding the Department’s interpretation of the operative statute and
regulation:
The Department’s construction and interpretation as a matter of law in this
case is that the Petitioner violated Tenn. Code Ann. § 63-19-107(2)(A) and
Tenn. Comp. R. & Regs. 0880-03-.02(1) by “prescribing controlled
substances under the supervision of a physician who did not have a DEA
registration and for whom prescribing controlled substances was not a usual
component of his regular scope of practice. . .” The Department argues that
implicit in this construction and application of Tenn. Code Ann. § 63-19-
107(2)(A) and Tenn. Comp. R. & Regs. 0880-03-.02(1) is that it was the
Petitioner’s duty and obligation to (1) know whether or not their
supervising physician possesses a valid DEA registration before prescribing
any controlled substances; and (2) know that the prescribing of controlled
substances forms a usual component of the supervising physician’s scope of
practice.
(Citations to administrative record omitted).
The trial court went on to conclude that the Department’s construction of the
Physician Assistants Act and regulations was erroneous as a matter of law because the
Department’s position “improperly places the duty on the physician assistant to ensure
compliance by the supervising physician of an unwritten requirement.” The trial court
determined that such a framework was “inconsistent with the statutory scheme of the
Physician Assistants Act which . . . places the responsibility for the services rendered by
a physician assistant on the supervising physician.”
As the basis for its statutory construction, the trial court began by citing Tenn.
Code Ann. § 63-19-106, which, during the relevant time period, stated that a physician
assistant was “authorized to perform selected medical services only under the supervision
of a licensed physician.” Tenn. Code Ann. § 63-19-107(a)(1). The court then noted that,
pursuant to Tenn. Code Ann. § 63-19-107(2)(A), a supervising physician may delegate
the authority to prescribe controlled substances. The trial court further stated: “It is
further undisputed that there is no specific statute or regulation which states explicitly
that a supervising physician must possess a DEA registration in order for the physician
assistant to be able to prescribe controlled substances.” In a footnote, the court
referenced Tenn. Comp. R. & Regs. 0880-02-.18, detailing the requirements applicable to
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a supervising physician, where there is no mention of DEA registration.3 The Physician
Assistants Act mentions DEA registration only with respect to a physician assistant, not
with respect to a supervising physician. See Tenn. Code Ann. § 63-19-107(2)(A) (“A
physician assistant to whom is delegated the authority to prescribe and/or issue controlled
substances must register and comply with all applicable requirements of the drug
enforcement administration.”).
As the trial court pointed out, the Committee (and the Board) have the authority
pursuant to Tenn. Code Ann. § 63-19-107(2)(A) to promulgate additional rules
concerning the prescribing of controlled substances by physician assistants. Moreover,
Tenn. Code Ann. § 63-19-104(a)(1) gives the Committee the duty to promulgate “all
rules that are reasonably necessary for the performance of the duties of the physician
assistants, including, but not limited to, rules that specify the acts and offenses that
subject the license holder to disciplinary action by the committee pursuant to subdivision
(a)(7).” Nevertheless, the relevant statutes and regulations are silent as to any
requirement that a supervising physician possess a DEA registration before he or she may
delegate the authority to a physician assistant to prescribe controlled substances. It is
also significant that the statutes and regulations requiring a physician assistant to inform
the Committee about his or her supervising physician and to update the Committee
concerning any changes, Tenn. Code Ann. §§ 63-19-107(1)4 and (2)(B)(i) and Tenn.
Comp. R. & Regs. 0880-03-.10(3),5 do not require the physician assistant to state whether
the supervising physician possesses a valid DEA registration. The trial court gleaned
from the silence of the statutes and regulations regarding any requirement that a
supervising physician have a valid DEA registration in order to be able to delegate
authority to a PA to prescribe controlled substances an indication “that the Legislature
and the Board did not intend for this to be a requirement.”
3
Tenn. Comp. R. & Regs. 0880-03-.21, entitled “Prescription Writing,” does not instruct a physician
assistant to ensure that her supervising physician has a valid DEA registration prior to writing a
prescription for a controlled substance.
4
At all relevant times, Tenn. Code Ann. § 63-19-107(1) stated, in pertinent part:
Each physician assistant shall notify the committee of the name, address and license
number of the physician assistants’ primary supervising physician and shall notify the
committee of any change in such primary supervising physician within fifteen (15) days
of the change. The number of physician assistants for whom a physician may serve as the
supervising physician shall be determined by the physician at the practice level,
consistent with good medical practice.
5
Tenn. Comp. R. & Regs. 0880-03-.10(3) provides: “Each physician assistant shall have a designated
primary supervising physician and shall notify the Committee of the name, address, and license number
of his/her primary supervising physician and shall notify the Committee of any change in such primary
supervising physician within fifteen (15) days of the change.”
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It is not consistent with the statutory scheme in place during the relevant time
period (which is similar to the statutory scheme in place today) for a PA to be held
responsible for his or her supervising physician’s failure to comply with a statutory or
regulatory requirement. Rather, the Physician Assistants Act and the General Rules
Governing the Practice of Physician Assistants make the supervising physician ultimately
responsible for the actions of the physician assistant. During the relevant time period,
Tenn. Code Ann. § 63-19-106 stated, in pertinent part:
(a) A physician assistant is authorized to perform selected medical services
only under the supervision of a licensed physician.
(1) Supervision requires active and continuous overview of the physician
assistant’s activities to ensure that the physician’s directions and advice
are in fact implemented, but does not require the continuous and constant
physical presence of the supervising physician. The board and the
committee shall adopt, by September 19, 1999, regulations governing the
supervising physician’s personal review of historical, physical and
therapeutic data contained in the charts of patients examined by the
physician assistant.
(2) The range of services that may be provided by a physician assistant
shall be set forth in a written protocol, jointly developed by the supervising
physician and the physician assistant. The protocol shall also contain a
discussion of the problems and conditions likely to be encountered by the
physician assistant and the appropriate treatment for these problems and
conditions. The physician assistant shall maintain the protocol at the
physician assistant’s practice location and shall make the protocol available
upon request by the board of medical examiners, the committee on
physician assistants or the authorized agents of the board or the committee.
(3) A physician assistant may perform only those tasks that are within the
physician assistant’s range of skills and competence, that are within the
usual scope of practice of the supervising physician and that are consistent
with the protection of the health and well-being of the patients.
(4) The physician assistant may render emergency medical service in
accordance with guidelines previously established by the supervising
physician pending the arrival of a responsible physician in cases where
immediate diagnosis and treatment are necessary to avoid disability or
death.
(b) A physician assistant shall function only under the control and
responsibility of a licensed physician. The supervisory physician has
complete and absolute authority over any action of the physician assistant.6
There shall, at all times, be a physician who is answerable for the actions of
the physician assistant and who has the duty of assuring that there is proper
6
This sentence was deleted effective July 1, 2015.
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supervision and control of the physician assistant and that the assistant’s
activities are otherwise appropriate.
(Emphasis added); see also Tenn. Code Ann. § 63-19-107 (2016 and 2017).7 As the trial
court pointed out, the statutory provision that the Department found Sparks violated,
Tenn. Code Ann. § 63-19-107, begins with the following sentence: “A licensed
physician supervising physician assistants shall comply with the following practices.”
This, too, is consistent with the idea that the duty of compliance rests ultimately with the
supervising physician. So is the following statement in the regulations: “Services
rendered by the physician assistant must be provided under the supervision, direction, and
ultimate responsibility of a licensed physician accountable to the Board of Medical
Examiners . . . .” TENN. COMP. R. & REGS. 0880-03-.02(1). Furthermore, our Supreme
Court has held that a supervising physician who delegates responsibilities to a physician
assistant acts as the principal and the physician assistant acts as the agent. See Cox v.
M.A. Primary & Urgent Care Clinic, 313 S.W.3d 240, 253-54 (Tenn. 2010).
Based upon the statutory and regulatory framework and relevant caselaw, we
agree with the conclusion reached by the trial court that, “to the extent the Petitioner
inadvertently prescribed controlled substances without the appropriate delegated
authority because her supervising physician did not possess a DEA registration, the error,
if any, would be with the supervising physician.” Similarly, the determination of whether
the prescribing of controlled substances was part of Dr. Adams’s usual scope of practice
and the duty of compliance rest with the supervising physician.
Thus, we affirm the trial court’s decision reversing the Committee’s DEA charges
for violations of Tenn. Code Ann. § 63-19-107(2)(A) and Tenn. Comp. R. & Regs. 0880-
03-.02(1). The related issues raised by Sparks—concerning vagueness, exclusion of
constitutional arguments, and exclusion of expert testimony—are pretermitted.
7
Tennessee Code Annotated section 63-19-107(2) provides, in pertinent part:
(B)(i) A physician assistant to whom the authority to prescribe legend drugs and
controlled substances has been delegated by the supervising physician shall file a notice
with the committee containing the name of the physician assistant, the name of the
licensed physician having supervision, control and responsibility for prescriptive services
rendered by the physician assistant and a copy of the formulary describing the categories
of legend drugs and controlled substances to be prescribed and/or issued, by the physician
assistant. The physician assistant shall be responsible for updating this information;
....
(F) No drugs shall be dispensed by a physician assistant except under the supervision,
control and responsibility of the supervising physician.
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II. Controlled Substances Monitoring Database.
In its final order, the Department determined that Sparks violated Tenn. Code
Ann. §§ 53-10-305(a)8 and -310(e)9 by failing to register with the CSMD and failing to
check the CSMD before prescribing controlled substances. Sparks does not dispute that
Tennessee law does (and did), in fact, require PAs to register with the CSMD and to
check the database before writing prescriptions for controlled substances. Rather, she
asserts, and the trial court agreed, that the Department failed to provide her with the
statutorily-required notice before enforcing these requirements against her. On appeal,
8
Tennessee Code Annotated section 53-10-305(a) (2015 and 2016) stated, in pertinent part, as follows:
All prescribers with DEA numbers who prescribe controlled substances and dispensers in
practice providing direct care to patients in Tennessee for more than fifteen (15) calendar
days per year shall be registered in the controlled substance database. New licensees shall
have up to thirty (30) calendar days after notification of licensure to register in the
database.
Effective April 27, 2016, Tenn. Code Ann. § 53-10-305(a) provided, in pertinent part:
All healthcare practitioners who prescribe or dispense controlled substances in practice
providing direct care to patients in this state by prescribing or dispensing on more than
fifteen (15) days in a calendar year total and are required to have a federal drug
enforcement administration (DEA) registration pursuant to federal law shall be registered
in the controlled substance database. Healthcare practitioners or their agents shall have up
to thirty (30) calendar days after receiving a DEA number to register in the database;
such privilege shall apply equally to both prescribers and dispensers.
9
Tennessee Code Annotated section 53-10-310(e)(1) (2016) stated:
All prescribers or their designated healthcare practitioner’s extenders, unless otherwise
exempted under this part, shall check the controlled substance database prior to
prescribing one of the controlled substances identified in subdivision (e)(3) to a human
patient at the beginning of a new episode of treatment and shall check the controlled
substance database for that human patient at least annually when that prescribed
controlled substance remains part of the treatment.
Effective April 27, 2016, Tenn. Code Ann. § 53-10-310(e)(1) stated, in pertinent part:
When prescribing a controlled substance, all healthcare practitioners, unless otherwise
exempted under this part, shall check the controlled substance database prior to
prescribing one (1) of the controlled substances identified in subdivision (e)(4) to a
human patient at the beginning of a new episode of treatment and shall check the
controlled substance database for that human patient at least annually when that
prescribed controlled substance remains part of the treatment. An authorized healthcare
practitioner’s delegate may check the controlled substance database on behalf of the
healthcare practitioner.
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the Department argues that the trial court erred in concluding that (1) the record lacked
substantial and material evidence that Sparks had notice that she was required to check
the CSMD, and (2) Tenn. Code Ann. § 63-1-139(b) places a duty upon the Department to
provide written notification to Sparks of changes in the law, a duty it argues to be in
derogation of the general presumption that people know the law.
We start with Tenn. Code Ann. § 63-1-139(b), which provides as follows:
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, upon the issuance and upon each
renewal of the holder’s license, certification or registration.
(Emphasis added). This language unambiguously requires the Department to notify
physician assistants of changes in state law that impact them and “are implemented or
enforced” by the Department. Tenn. Code Ann. § 63-1-139(b). The Department does
not dispute the notice requirement, but it asserts that Sparks had actual knowledge of her
obligation to check the CSMD before prescribing controlled substances and, thus, the
Department was not required to provide notice. We disagree.
We note, first, that the Department cites no authority for the proposition that actual
notice would excuse it from its statutory obligation to provide notice. Moreover, there is
no substantial and material evidence in the record that Sparks had actual notice during the
relevant time period. In support of its actual notice argument, the Department cites the
following testimony:
MR. NAVA [Committee member]: And during this time that you
were relying on your colleague to help you check people when she was on
duty on Thursday, did you ever have a discussion with your colleague or
with your supervising physician as to “I can only check this database when
my colleague is on duty, but I can’t check it when I’m on duty”? Did that
discussion ever come up?
THE WITNESS [Sparks]: No, because if something came up, I just
didn’t write for anything if I couldn’t check it. If I was suspicious or it
needed to be more than a seven-day course, I just did not write it.
Earlier in the hearing, Sparks testified as follows:
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Q. When did you become aware of the Tennessee Controlled
Substance Monitoring Database?
A. When Linda [Hobbs] and I talked about it—well, when she
would be there, if we had a suspicious patient, we would go on and pull
them up, or if we had someone that we thought might need some repeat
prescription for some narcotics.
Q. Okay. So on the days she was working—
A. She would check it, but she didn’t—at that time, I guess she
didn’t think about it. We didn’t talk about the fact that we were required to
be registered.
....
Q. But since then, you’ve now learned that whenever you initiate
somebody on a course of controlled substance medication, you are
supposed to check the CSMD first, correct?
A. Only if it’s more than a seven-day supply.
Q. Fair enough. . . .
We consider this testimony insufficient to establish that Sparks had actual notice during
the relevant time period that she was required to register with the CSMD and to check the
database prior to prescribing controlled substances.
The parties stipulated at the contested case hearing that Sparks testified she never
received notice from the State of the requirement to register with the CSMD.10 This was
also a finding of fact in the Committee’s final order approved by the Board. The
Department provided no proof that it notified Sparks of the need to register with the
CSMD. The parties also stipulated that Sparks learned of the requirement to register with
the CSMD in October 2016 at a continuing education course. At the hearing, the
Department submitted into evidence a letter sent to all physician assistants in May 2015
entitled “Requirement to Identify Supervising Physician in CSMD,” which includes the
following language:
If you are required to register in the CSMD, you must enter your
supervising physician’s driver’s license number into the CSMD. Once
entered, your supervising physician must approve the supervisory
relationship. Failure to enter and approve this relationship by June 15,
2015 will result in the supervisee’s inability to properly access the CSMD. .
..
A recent rule change promulgated pursuant to Public Chapter 898 (2014)
requires all physician assistant prescribers to identify their supervising
physician by entering that physician’s driver’s license number into the
CSMD. If you have not already obtained your supervising physician’s
10
Sparks also testified to this fact at the contested case hearing.
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driver’s license number and entered that information into the CSMD, you
are advised to do so immediately.
(Emphasis added). We do not consider this letter to constitute substantial and material
evidence of notice to Sparks for two reasons. First, the parties stipulated that Sparks had
no notice.11 Second, the letter uses the language “if you are required to register with the
CSMD.” It does not provide notice that physician assistants are now required to register
with the CSMD and to check with the database before prescribing controlled substances.
The Department had the burden of proof to establish that Sparks violated the
CSMD requirements. The record does not contain substantial and material evidence to
support a finding that Sparks had notice during the relevant time period that she was
required to register with the CSMD and check with the CSMD before prescribing
controlled substances. The remaining arguments are pretermitted. We affirm the trial
court’s decision reversing the Department’s determination regarding the CSMD charges.
III. Attorney Fees.
The Department argues that, even if this court affirms the June 21, 2018 judgment
of the trial court, we should reverse the trial court’s September 10, 2018 order awarding
attorney fees and costs to Sparks pursuant to Tenn. Code Ann. § 4-5-325. More
specifically, the Department asserts that Sparks failed to establish that the charges
brought against her by the Department were not well-grounded in fact and not warranted
by existing law as required under Tenn. Code Ann. § 4-5-325. We respectfully disagree.
The language of Tenn. Code Ann. § 4-5-325 is as follows:
(a) When a state agency issues a citation to a person, local governmental
entity, board or commission for the violation of a rule, regulation or statute
and such citation results in a contested case hearing, at the conclusion of
such hearing, the hearing officer or administrative law judge may order
such agency to pay to the party issued a citation the amount of reasonable
expenses incurred because of such citation, including a reasonable
attorney’s fee, if such officer or judge finds that the citation was issued:
(1) Even though, to the best of such agency’s knowledge, information and
belief formed after reasonable inquiry, the violation was not well grounded
in fact and was not warranted by existing law, rule or regulation; or
(2) For an improper purpose such as to harass, to cause unnecessary delay
or cause needless expense to the party cited.
11
In light of the specific requirement in Tenn. Code Ann. § 63-1-139(b) that the Committee notify PA’s
of changes in the law, we consider the Department’s reliance on the general presumption that people
know the law to be misplaced.
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(b) If a final decision in a contested case hearing results in the party issued
a citation seeking judicial review pursuant to § 4-5-322, the judge, at the
conclusion of the hearing, may make the same findings and enter the same
order as permitted the hearing officer or administrative law judge pursuant
to subsection (a).
(Emphasis added). In its order awarding attorney fees, the trial court found that “the
allegations in the Notice of Charges and the administrative decisions flowing therefrom
were not well-grounded in fact and were not warranted by existing law, rule, or
regulations.” On appeal, the Department takes the position that the trial court erred in
making this finding and awarding attorney fees.
On the issue of whether the charges were well-grounded in fact, the Department’s
argument is that the parties stipulated to the facts supporting the charges against her. The
relevant question, however, is whether the Department established facts, by stipulation or
otherwise, sufficient to prove a violation of the law. See Tenn. Dep’t of Health & Div. of
Health Related Bds. v. Chary, No. M2012-00866-COA-R3-CV, 2013 WL 1576251, at *4
(Tenn. Ct. App. Apr. 12, 2013) (finding insufficient evidence and, therefore, concluding
that charge was not well-grounded in fact). In the present case, as discussed above, the
facts were not sufficient for the Department to charge Sparks with a violation.
As to whether the charges were warranted under the law, the Department
emphasizes that the charges must be unwarranted “by existing law, rule or regulation.”
Tenn. Code Ann. § 4-5-325 (emphasis added). The Department invokes the deference
normally afforded by the courts to the Department’s interpretation of its governing law
and argues that the charges were justified under the law as understood prior to the trial
court’s decision. For the reasons discussed above, however, we consider our construction
of the relevant laws and regulations to be more consistent with the underlying purposes of
the Physician Assistants Act than the interpretation supported by the Department in this
case. The Physician Assistants Act does not include a requirement that a supervising
physician be registered with the DEA. Moreover, the statutes governing health-related
boards require them to give notice of changes in the applicable laws prior to bringing
charges for enforcement.
We find no merit in the Department’s attorney fees argument.
CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, Tennessee Department of Health, Board of
Medical Examiners, Committee on Physician Assistants, for which execution may issue
if necessary.
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________________________________
ANDY D. BENNETT, JUDGE
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