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Tennessee Department of Health v. Sparks

Court of Appeals of Tennessee, Nashville

September 6, 2019


          Session July 10, 2019

          Appeal from the Chancery Court for Davidson County No. 17-1064-III Ellen H. Lyle, Chancellor

         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

          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.

          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.



         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 provisions[2]:

(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);
(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
• 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 ...

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