Can Tennessee nurse anesthetists, nurse midwives, and clinical nurse specialists get a certificate of fitness to prescribe medications, or only nurse practitioners?

Plain-English summary

When the Tennessee Health Related Boards (the Board of Medical Examiners, Board of Nursing, and others) adopted rules implementing the Tamper-Resistant Prescription Act (Public Chapter 1035 of 2008), they defined "prescriber" to include not just doctors, dentists, and physician's assistants, but also "advanced practice nurses with a certificate of fitness to prescribe." That definition assumed all categories of advanced practice nurse (nurse practitioners, nurse anesthetists, nurse midwives, clinical nurse specialists) were eligible to hold a certificate of fitness. Representative Susan Lynn asked the AG whether that assumption was right.

AG Cooper traced the history. In 1980, Public Chapter 851 first granted prescriptive authority to nurses and assigned the Board of Nursing the duty to "establish and examine the qualifications" of nurses applying for a certificate of fitness "as a nurse practitioner, as defined by the board of nursing." The legislature has never defined "nurse practitioner" itself; it has always left the definition to the Board. After 1985, the Board has issued certificates of fitness to all four categories of advanced practice nurses, treating them all as "nurse practitioners" within the meaning of the statute.

When the legislature in 2002 created the formal category of "advanced practice nurse" (Tenn. Code Ann. § 63-7-126), it explicitly froze the existing law in place: "Nothing in this section shall be interpreted to alter or change the current law as it existed on May 22, 2002, regarding prescriptive rights, supervision, or scope of practice for nurse anesthetists ... nurse midwives ... clinical nurse specialists, or certified nurse practitioners." The Board's pre-2002 practice of issuing certificates of fitness across all four categories was therefore preserved.

Cooper concludes that the Board has acted within its statutory authority, and the new tamper-resistant prescription rules' inclusion of advanced practice nurses with a certificate of fitness as "prescribers" is correct. The Board's longstanding interpretation deserves deference, and the legislature's 2002 freeze locks it in.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee's nursing scope-of-practice landscape has evolved significantly since 2010, including changes to physician supervision rules and prescriptive authority. Anyone making current decisions about advanced practice nurse prescribing should consult the present Title 63, Chapter 7 directly.

Common questions

Q: What is the Tamper-Resistant Prescription Act?
A: Public Chapter 1035 of 2008, codified at Tenn. Code Ann. § 53-10-401(a). It requires all written or printed prescriptions in Tennessee to be on tamper-resistant paper meeting federal requirements. The federal driver was Section 7002(b) of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007.

Q: What is an "advanced practice nurse" in Tennessee?
A: Per Tenn. Code Ann. § 63-7-126(a), a registered nurse with a master's degree or higher in a nursing specialty and national specialty certification as one of: nurse practitioner, nurse anesthetist, nurse midwife, or clinical nurse specialist. The 2002 statute formalized this umbrella term.

Q: Why did the Board of Nursing's regulatory definition matter?
A: Because the Board's tamper-resistant rules used "advanced practice nurse with a certificate of fitness to prescribe" as the operative description. If only nurse practitioners (in the narrow sense) could hold certificates of fitness, the rule would either be wrong or be narrower than its text suggests. The AG's opinion confirms the Board's reading: all four categories of advanced practice nurse can hold certificates of fitness.

Q: How did the Board come to issue certificates to nurse anesthetists and midwives in the first place?
A: The 1980 statute (former Tenn. Code Ann. § 63-7-207(13)) directed the Board to define what "nurse practitioner" meant for purposes of issuing certificates of fitness. The Board interpreted "nurse practitioner" broadly, in line with national practice, and started issuing certificates in 1985. The opinion notes about 150 such certificates were issued in December 1985, including to nurse midwives and other advanced practice categories.

Q: What does the 2002 freeze in § 63-7-126(e) actually do?
A: It says nothing in the new "advanced practice nurse" statute "shall be interpreted to alter or change the current law as it existed on May 22, 2002, regarding prescriptive rights, supervision, or scope of practice." It also bars any board or other entity from promulgating rules that would change those rights, supervision, or scope of practice. The effect: the Board's pre-2002 broad reading of "nurse practitioner" cannot be narrowed by the 2002 statute, and rule changes that would reshape it are also blocked.

Q: What requirements must a nurse meet to get a certificate of fitness?
A: Per Tenn. Comp. R. & Regs. 1000-04-.04(2): (a) current Tennessee RN license; (b) graduation from a master's or doctoral nursing program; (c) specialized practitioner skills training including at least three quarter hours of pharmacology; and (d) current national certification in the appropriate nursing specialty area. The rule does not limit eligibility to "nurse practitioners" in the narrow specialty sense.

Q: Does this opinion say all advanced practice nurses must be authorized to prescribe controlled substances?
A: No. The opinion only addresses eligibility for the certificate of fitness, which is governed by the statute and the Board's rules. Controlled substance prescribing involves additional federal DEA registration and (under separate Tennessee law) physician supervision rules.

Q: What if a court were to read "nurse practitioner" narrowly?
A: The opinion implicitly concedes the textual ambiguity. The Board's broad practice has been long-standing, and courts give substantial deference to an agency's interpretation of its own enabling statute when the legislature has expressly delegated definitional authority. The 2002 freeze adds a second layer of protection by tying any future change to the May 22, 2002 status quo.

Background and statutory framework

Tennessee's nurse-prescribing statutes have a winding legislative history that the opinion patiently reconstructs. The starting point is 1980's Public Chapter 851. Section 3 of that Act gave the Board of Nursing authority to define "nurse practitioner" and to set qualifications for a certificate of fitness to prescribe. Section 4 directed the licensing board for the healing arts to issue the actual certificate on the Board of Nursing's recommendation. Section 7 imposed site-specific limits: nurse practitioners could prescribe only within sites approved by the licensing board.

In 1985, Public Chapter 120 abolished the licensing board for the healing arts and transferred its certificate-issuing authority to the Board of Nursing. The Board issued about 150 certificates of fitness in December 1985, including to nurses across multiple advanced practice categories. From that moment, the Board's working definition of "nurse practitioner" included anesthetists, midwives, and clinical nurse specialists.

A series of later amendments removed the site-specific restriction and replaced it with notice-filing, formulary, and protocol requirements (1994 Public Chapter 569; 1996 Public Chapter 659). The 1992 Public Chapter 822 added a temporary certificate of fitness pathway for nurses awaiting national certification examination results. In 1997, Public Chapter 507 authorized advanced practice nurse holders of certificates of fitness to prescribe controlled substances under joint physician supervisory rules.

In 2002, the legislature codified the "advanced practice nurse" category at Tenn. Code Ann. § 63-7-126 and added the protective language in subsection (e): nothing in the new statute alters law as it existed on May 22, 2002 regarding prescriptive rights, supervision, or scope of practice for any of the four categories. This is the textual basis for treating the Board's broad practice as locked in.

Today, Tenn. Code Ann. § 63-7-207(14) (formerly subsection (13)) gives the Board the same definitional authority it had in 1980: "Establish and examine the qualifications, competencies, training, education and experience required of a registered nurse applying for a certificate of fitness as a nurse practitioner, as defined by the board, sufficient to prepare such person to write and sign prescriptions and/or issue drugs in accordance with the limitations and provisions of § 63-1-132." The "as defined by the board" language is the core of Cooper's analysis: the legislature delegated the definition, the Board has used the delegation to include all four categories, and the legislature has never countermanded that interpretation.

The Tamper-Resistant Prescription Act and the Boards' implementing rules (Tenn. Comp. R. & Regs. 0880-02-.23 (Medical Examiners) and 1000-04-.10 (Nursing), among others) operate downstream of this framework. They define "prescriber" to include "an individual licensed in Tennessee as a medical doctor, podiatrist, advanced practice nurse with a certificate of fitness to prescribe, dentist, optometrist, osteopathic physician, or physician's assistant." That definition reflects the underlying authority correctly: the Board has issued and continues to issue certificates of fitness to all four categories of advanced practice nurse.

Citations and references

Statutes:

• Tenn. Code Ann. § 53-10-401(a) (tamper-resistant prescription paper required)
• Tenn. Code Ann. § 63-1-104(b) (former licensing-board recommendation provision)
• Tenn. Code Ann. § 63-1-132 (current limitations and provisions)
• Tenn. Code Ann. § 56-7-2407 (nurse midwives definition)
• Tenn. Code Ann. § 63-7-123 (certificate of fitness; nurse practitioner prescriptions)
• Tenn. Code Ann. § 63-7-126 (advanced practice nurses; 2002 freeze)
• Tenn. Code Ann. § 63-7-207(13)/(14) (Board duty to define nurse practitioner qualifications)
• Tenn. Code Ann. § 68-1-602 (former site-specific recording provision)
• Public Chapter 851 (1980)
• Public Chapter 120 (1985)
• Public Chapter 822 (1992)
• Public Chapter 569 (1994)
• Public Chapter 659 (1996)
• Public Chapter 507 (1997)
• Public Chapter 678 (2004)
• Public Chapter 1035 (2008) (Tamper-Resistant Prescription Act)

Federal law:

• Section 7002(b) of P.L. 110-28 (United States Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007)

Rules:

• Tenn. Comp. R. & Regs. 0880-02-.23 (Tennessee Board of Medical Examiners)
• Tenn. Comp. R. & Regs. 1000-04-.04 (Tennessee Board of Nursing certificate of fitness)
• Tenn. Comp. R. & Regs. 1000-04-.10 (Tennessee Board of Nursing tamper-resistant rules)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-022.pdf

Original opinion text

Rules Implementing the Tamper-Resistant Prescription Act

QUESTIONS

Administrative rules and regulations have been promulgated recently by several of the Health Related Boards in implementation of 2008 Acts, Public Chapter 1035, relating to tamper-resistant prescriptions. These rules have prompted several questions:

1. Is there any explicit statutory authority for a nurse anesthetist, nurse midwife, or clinical nurse specialist to prescribe prescription medications?

2. Does Tennessee Code Annotated § 63-7-126 give prescribing privileges to all categories of advanced practice nurse?

3. Does Tenn. Code Ann. § 63-7-123, which allows qualified nurses in the category of advanced practice nurse known as "nurse practitioner" to be issued a certificate of fitness to prescribe, also authorize the Board of Nursing to issue a certificate of fitness to prescribe to the other three categories of advanced practice nurse?

OPINION

1-3. Based upon our examination of the provisions of the relevant law, as it existed on and before May 22, 2002 and as it exists today, we conclude that, since 1980, there has existed statutory authority for issuance of a certificate of fitness to prescribe to an advanced practice nurse anesthetist, nurse midwife, or clinical nurse specialist, as well as to an advanced practice nurse practitioner, so long as that individual has met all of the qualifications prescribed by the Board of Nursing for issuance of such certificate.

ANALYSIS

1-3. 2008 Acts, Public Chapter 1035 (hereafter "the Act"), was passed by the Legislature in order to comply with the requirements of federal law. The Act requires that all prescriptions written or printed in this state be written on tamper-resistant prescription paper that meets federal requirements. Tenn. Code Ann. § 53-10-401(a). It applies to "practitioners authorized to write prescriptions in this state." Id.

The health related boards that regulate Tennessee prescribers recently have adopted identical rules that provide additional detail with respect to the required characteristics of tamper-resistant prescription paper. See, e.g., Tenn. Comp. R. & Regs. 0880-02-.23 (Tennessee Board of Medical Examiners). The rules define the "prescriber[s]" to whom they apply; a prescriber is "an individual licensed in Tennessee as a medical doctor, podiatrist, advanced practice nurse with a certificate of fitness to prescribe, dentist, optometrist, osteopathic physician, or physician's assistant." See, e.g., Tenn. Comp. R. & Regs. 0880-02-.23(2)(b), 1000-04-.10(2)(b) (Tennessee Board of Nursing) (emphasis added).

The above regulatory definition of "prescriber" has prompted your request for an opinion from us. Citing Tenn. Code Ann. §§ 63-7-123 and 63-7-126, you question whether advanced practice nurses who are not "nurse practitioners" but are "nurse anesthetists," "nurse midwives," or "clinical nurse specialists" are authorized by Tennessee law to obtain from the Board of Nursing a certificate of fitness to prescribe medications.

Tenn. Code Ann. § 63-7-123, titled "Certified nurse practitioners – Drug prescriptions – Temporary certificate – Rules and regulations" and amended a number of times since its 1980 enactment, contains much of the statutory law that is applicable to those nurses who are authorized to write and sign prescriptions and/or issue drugs. Most of its provisions refer to such persons as "nurse practitioners" or "nurse practitioners who hold a certificate of fitness." However, as will be discussed further below, nothing in Tenn. Code Ann. § 63-7-123 or in any other provision of the Tennessee Code establishes a legislatively-imposed definition of these terms. Tenn. Code Ann. § 63-7-126, titled "Advanced practice nurses" and enacted in 2002, established the certification category of "advanced practice nurse" in Tennessee. It defines "advanced practice nurse" as a "registered nurse with a master's degree or higher in a nursing specialty and national specialty certification as a nurse practitioner, nurse anesthetist, nurse midwife, or clinical nurse specialist." Tenn. Code Ann. § 63-7-126(a). Paragraph (e) of Tenn. Code Ann. § 63-7-126 states:

Nothing in this section shall be interpreted to alter or change the current law as it existed on May 22, 2002, regarding prescriptive rights, supervision, or scope of practice for nurse anesthetists regulated under this title, nurse midwives as described in § 56-7-2407, clinical nurse specialists, or certified nurse practitioners as defined in § 63-7-123. Nor shall anything in this section be interpreted to allow any board or other entity to promulgate rules that would alter or change the law as it existed on May 22, 2002, regarding such prescriptive rights, supervision, or scope of practice.

Based upon the above statutory provisions, we have determined that an examination of the provisions of the law as it existed on and before May 22, 2002, as well as today, is necessary to answer your questions.

In 1980, the Tennessee Legislature first granted prescriptive rights to certain nurses. It did so by means of Public Chapter 851. This legislation included a provision directing the Board of Nursing to:

[e]stablish and examine the qualifications, competencies, training, education, and experience required of a registered nurse applying for a certificate of fitness as a nurse practitioner, as defined by the board of nursing, and of such nurse practitioner who has met such additional requirements, sufficient to prepare such person to write and sign prescriptions and/or issue drugs in accordance with the limitations and provisions of Section 7 of this act.

1980 Acts, Public Chapter 851, § 3 (codified at former Tenn. Code Ann. § 63-736(m), subsequently renumbered as former Tenn. Code Ann. § 63-7-207(13)). Public Chapter 851 further directed that if the Board of Nursing found an applicant "defined" in Section 3 of the chapter to be "worthy and competent," it was to:

recommend to the licensing board for the healing arts that a certificate of fitness be issued to such person, designating such person to be a certified nurse practitioner, and recommend such nurse practitioner who [has met] such additional qualifications, competencies, training, education, and experience, pursuant to such section, sufficient to prepare such person to write and sign prescriptions and/or issue drugs within the limitations and provisions of Section 7 of this act.

1980 Acts, Public Chapter 851, § 4 (codified at former Tenn. Code Ann. § 63-103, subsequently renumbered with minor changes in language as former Tenn. Code Ann. § 63-1-104(b)).

In 1985, the Legislature abolished the state licensing board for the healing arts and transferred to the Board of Nursing the healing arts board's previous authority to issue certificates of fitness to nurse practitioners upon the recommendation of the Board of Nursing. 1985 Acts, Pub. Chap. 120, § 9. Following passage of these amendments, the Board of Nursing's statutory authority to authorize nurse prescribers lay in Tenn. Code Ann. §§ 63-7-207(13) and 63-7-123. Tenn. Code Ann. § 63-7-207(13) gave the Board the power and duty to:

[e]stablish and examine the qualifications, competencies, training, education, and experience required of a registered nurse applying for a certificate of fitness as a nurse practitioner, as defined by the board of nursing, sufficient to prepare such person to write and sign prescriptions and/or issue drugs in accordance with the limitations and provisions of § 68-1-602.

Tenn. Code Ann. § 63-7-123 provided that:

(a) The Board shall issue a certificate of fitness to nurse practitioners who meet the qualifications, competencies, training, education, and experience, pursuant to Section 63-7-207(13), sufficient to prepare such persons to write and sign prescriptions and/or issue drugs within the limitations and provisions of Section 68-1-602, Tennessee Code Annotated.

(b) A nurse who has been issued a certificate of fitness as a nurse practitioner pursuant to Sections 63-7-207 and 63-7-123, Tennessee Code Annotated, has not been automatically given the right to write and sign prescriptions and/or issue drugs but such person shall be given such privileges as provided for by Sections 63-7-207 and 63-7-123, Tennessee Code Annotated, only when the certificate of fitness of the nurse practitioner, and the recommendation of the Primary Care Board for the site at which the nurse practitioner is practicing has been recorded and filed in accordance with Section 68-1-602, Tennessee Code Annotated.

We have been informed that pursuant to this 1985 statutory authority, the Board of Nursing issued approximately 150 certificates of fitness in December 1985 to nurses whom it had established as qualified to prescribe and had defined as nurse practitioners. These early holders of certificates of fitness as nurse practitioners included nurse midwives and other categories of what are now referred to as advanced practice nurses.

Over the next several years, the Legislature made a number of changes to the statutes pertinent to nurse prescribers. In 1992, it enacted provisions for the issuance of a temporary certificate of fitness. 1992 Acts, Pub. Chap. 822. The Legislature specified that such temporary certificate could be issued to persons who are licensed to practice in Tennessee, have a "master's degree in a nursing clinical specialty area with preparation in specialized practitioner skills which includes three (3) quarter hours of pharmacology instruction or its equivalent," and who have "applied for examination and/or [are] awaiting examination results for national certification as a first-time examinee in an appropriate nursing specialty area." Id. (presently codified at Tenn. Code Ann. § 63-7-123(c)). Other changes included abolishing the "site-specific" restrictions upon nurse practitioners' prescribing and replacing such restrictions with notice-filing, formulary and protocol requirements (see 1994 Acts, Pub. Chap. 569; 1996 Acts, Pub. Chap. 659); and authorizing nurse practitioners who hold a certificate of fitness to prescribe and/or issue controlled substances, in compliance with physician supervisory rules jointly adopted by the Board of Medical Examiners and the Board of Nursing (see 1997 Acts, Pub. Chap. 507). As it did with other prescribing practitioners, the Legislature also imposed upon nurse practitioners requirements with respect to such matters as legibility of prescriptions. See, e.g., 2004 Acts, Pub. Chap. 678.

As noted above, when the Legislature adopted the "advanced practice nurse" statute in 2002, it stated that nothing in the new statute should be interpreted to alter or change the current law as it existed on May 22, 2002, regarding prescriptive rights, supervision, or scope of practice for nurse anesthetists, nurse midwives, clinical nurse specialists, or certified nurse practitioners. Tenn. Code Ann. § 63-7-126(e). As of May 22, 2002, the Board of Nursing's "Qualifications" rule governing qualifications for issuance of a certificate of fitness as a nurse practitioner with privileges to write and sign prescriptions and/or issue legend drugs required in paragraph (1) that an applicant meet all of the following requirements:

(a) Current licensure as a registered nurse under T.C.A. Title 63, Chapter 7;
(b) Graduation from a program conferring a master's or doctoral degree in nursing;
(c) Preparation in specialized practitioner skills at the master's, post-master's, doctoral, or post-doctoral level. Said specialized practitioner skills education shall include, but not be limited to, at least three (3) quarter hours of pharmacology instruction or its equivalent; and
(d) Current national certification in the appropriate nursing specialty area.

Tenn. Comp. R. & Regs. 1000-04-.03(1) (effective June 8, 1999). This paragraph is still in effect today, although it has been renumbered as paragraph (2) of rule 1000-04-.04 (titled "Certificate of Fitness"). Tenn. Comp. R. & Regs. 1000-04-.04(2) (effective August 11, 2004).

Examination of the language of this rule demonstrates that it does not limit issuance of certificates of fitness as a nurse practitioner with privileges to write and sign prescriptions and/or issue legend drugs to only those nurses with an advanced degree in, and national certification as, a "nurse practitioner." Rather, the rule allows, in accordance with the Board of Nursing's practice in issuing such certificates of fitness since 1985, issuance of certificates of fitness to nurse anesthetists, nurse midwives, and clinical nurse specialists, as well as to nurse practitioners, so long as any such advanced practice nurse meets the qualifications set out in the rule.

Based upon the above examination of legal authority, we conclude that, since 1980, there has existed statutory authority for issuance of a certificate of fitness to prescribe to an advanced practice nurse anesthetist, nurse midwife, or clinical nurse specialist, as well as to an advanced practice nurse practitioner, so long as that individual has met all of the qualifications prescribed by the Board of Nursing for issuance of such certificate. Mindful that the primary object in applying and construing statutes is to determine the legislative intent, we take particular note of the fact that from 1980 until the present, the Legislature has not itself defined the term "nurse practitioner." Rather, from the beginning it has specifically given this authority to the Board of Nursing. 1980 Acts, Public Chapter 851, § 3 (codified at former Tenn. Code Ann. § 63-736(m), subsequently renumbered as former Tenn. Code Ann. § 63-7-207(13)). Today, this provision is found at Tenn. Code Ann. § 63-7-207(14) and reads remarkably similarly to the language originally enacted in 1980 (the Board of Nursing has the power and duty to "[e]stablish and examine the qualifications, competencies, training, education and experience required of a registered nurse applying for a certificate of fitness as a nurse practitioner, as defined by the board, sufficient to prepare such person to write and sign prescriptions and/or issue drugs in accordance with the limitations and provisions of § 63-1-132" (emphasis added)). Since 1980, the Legislature has not altered this broad conveyance of definitional authority to the Board of Nursing. Furthermore, it expressed the specific intention in 2002 that its enactment of the "advanced practice nurse" statute would not alter or change current law as it existed on May 22, 2002, regarding prescriptive rights, supervisions, or scope of practice for nurse anesthetists, nurse midwives, clinical nurse specialists, or certified nurse practitioners. In defining the category of "nurse practitioners" who were and are qualified to receive a certificate of fitness to prescribe to include other advanced practice nurses, it is our opinion that the Board of Nursing has acted within the scope of its legislatively-conveyed authority.

ROBERT E. COOPER, JR.
Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

SUE A. SHELDON
Senior Counsel

Requested by:
Honorable Susan Lynn
State Representative
215 War Memorial Building
Nashville, Tennessee 37243-0157