If Tennessee identifies a doctor as a high-risk prescriber of controlled substances, are the remedial steps the licensing board imposes (continuing education, waiting-room literature, special opioid consents) optional or required?

Plain-English summary

Tennessee Attorney General Jonathan Skrmetti answered a question from Lieutenant Governor Randy McNally about how the state's controlled-substances oversight program treats clinicians who get flagged as "high-risk prescribers." Under § 68-1-128(c), the Department of Health identifies prescribers based on clinical outcomes (including patient overdoses) and forwards their names to the relevant licensing board. The statute then says the board "shall notify the prescriber" and, "as applicable, require" four kinds of remedial measures: continuing education, waiting-room and clinical-area literature on opioid risks, a special patient consent form for high-dose opioid therapy lasting more than three weeks, and renewal of that consent every four weeks.

The question was whether "as applicable" means the licensing board has discretion to impose or skip each remedial step. The AG said no. "As applicable" carves out steps that physically cannot fit a given prescriber's practice (e.g., a prescriber who never has a patient on more than 60 morphine milligram equivalents per day for over three weeks does not need to use the high-dose consent), but it does not give the board permission to omit any otherwise-applicable step. The four measures are mandatory for high-risk prescribers when the underlying practice circumstances exist.

What this means for you

If you are a Tennessee clinician who prescribes controlled substances

The opinion holds that once a licensing board receives a high-risk-prescriber referral, the remedial steps in § 68-1-128(c)(3)(A) through (D) are required, not optional, to the extent they are relevant to the prescriber's practice. Those steps are continuing education, making the statute's opioid-risk literature available in waiting rooms and clinical areas, the special patient consent for opioid therapy at 60 MME or higher per day lasting more than three weeks, and renewing that consent every four weeks. The AG read "as applicable" to excuse only a step that cannot fit the prescriber's actual practice (for example, the (C) and (D) consent steps where a prescriber has no qualifying high-dose patients), not a step the board would prefer to skip.

If you are a collaborating physician for a high-risk APRN or PA

The opinion notes that § 68-1-128(c)(3) directs the licensing board to notify the prescriber "and, if applicable, the prescriber's collaborating physician" of the high-risk identification. The opinion did not address any further collaborating-physician obligations beyond that notice.

If you sit on a Tennessee health-care licensing board

The opinion holds that the board does not have discretion to treat the § 68-1-128(c)(3) remedial measures as optional. It reaches that result from the ordinary meaning of "require" and the canon against surplusage: reading "as applicable" to mean "optional" would render the (A) through (D) scheme nugatory. On that reading the board must impose each applicable measure, and "as applicable" turns only on whether the prescriber's practice presents the circumstances a given step addresses.

If you are a health-law attorney advising a clinician

The opinion holds that the remedial steps are mandatory where relevant, so the question it frames is whether a particular step is "applicable" to the prescriber's practice, not whether the board may choose to impose it. The opinion does not address procedural challenges to the high-risk designation itself; it interprets only what the board must do once the Department of Health forwards a designation.

Common questions

Q: Who counts as a "high-risk prescriber" under § 68-1-128(c)?
A: A clinician identified by the Tennessee Department of Health based on clinical outcomes, including patient overdoses. This is different from a "frequent prescriber," which is identified by volume of controlled-substance prescriptions under § 68-1-128(a)(1)(A) and (B).

Q: What are the four remedial measures the licensing board can impose?
A: (A) Continuing education; (B) making certain literature on opioid risks available in waiting rooms and clinical areas; (C) obtaining specific additional patient consent for opioid therapy lasting more than three weeks at 60 MME or higher; and (D) renewing that special consent every four weeks.

Q: Does "as applicable" mean the board can pick and choose?
A: No. It means each remedial step applies if the clinician's practice presents the circumstances that step addresses. If those circumstances exist, the step is required.

Q: What happens if a high-risk prescriber never has a patient on opioid therapy at 60 MME or higher for more than three weeks?
A: Subdivisions (C) and (D) (the special consent and its renewal) would not be "applicable" to that practice. The other measures, continuing education and the literature requirement, would still apply.

Q: Does the licensing board have to notify the prescriber's collaborating physician?
A: Yes, if applicable. The statute directs notice to "the prescriber and, if applicable, the prescriber's collaborating physician."

Q: Can a clinician contest the high-risk designation?
A: This opinion does not address procedural challenges to the designation itself. It interprets only what the licensing board must do once the Department of Health forwards a designation. Procedural rights would come from the board's own regulations and Tennessee administrative law.

Background and statutory framework

Tennessee enacted the high-risk prescriber framework in 2017 as part of broader efforts to address opioid prescribing patterns. Section 68-1-128(c) builds a three-step pipeline: the Department of Health identifies a high-risk prescriber based on clinical outcomes (subsection (c)(1)), the Department forwards the prescriber's information to the appropriate licensing board (subsection (c)(2)), and the board then acts on that information by notifying the prescriber and requiring remedial steps (subsection (c)(3)).

The interpretive question turned on the phrase "as applicable, require." The AG applied standard Tennessee canons: courts begin with statutory text, give words their ordinary meaning, and presume the legislature uses each word deliberately. Reading "as applicable" to mean "optional" would render the statute's command "require" hollow and would leave the careful enumeration in subdivisions (A) through (D) without practical effect, violating the canon against surplusage.

The opinion also notes the contrast between "frequent prescribers" (volume-based) and "high-risk prescribers" (outcome-based). Different identification standards, but both feed into licensing-board action.

Citations and references

Statutes:

• Tenn. Code Ann. § 68-1-128 (frequent or high-risk prescribers)
• Tenn. Code Ann. § 68-1-128(c)(1)–(3) (high-risk prescriber pipeline)
• Tenn. Code Ann. § 68-1-128(c)(3)(A)–(D) (required remedial steps)

Cases:

• Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173 (Tenn. 2008) (statutory interpretation)
• Ellithorpe v. Weismark, 479 S.W.3d 818 (Tenn. 2015) (natural and ordinary meaning)
• State v. Deberry, 651 S.W.3d 918 (Tenn. 2022) (use of contemporaneous dictionaries)
• State v. Strode, 232 S.W.3d 1 (Tenn. 2007) (canon against surplusage)
• Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216 (Tenn. 2010) (whole-text reading)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2025/op25-001.pdf

Original opinion text

Opinion No. 25-001
Requirements for High-Risk Prescribers under Tenn. Code Ann. §§ 68-1-128(c)(3)(A)-(D)
Tennessee Code Annotated § 68-1-128(c) requires the Tennessee Department of Health to
identify high-risk prescribers of controlled substances. Once identified by the Department, Tenn.
Code Ann. § 68-1-128(c)(3) requires the Department to forward the prescriber's information to the
appropriate licensing board. The statute states that the licensing board "shall notify the prescriber"
of his or her high-risk status and "as applicable, require the prescriber to" undertake a series of
remedial steps defined in Tenn. Code Ann. §§ 68-1-128(c)(3)(A)-(D) Are those remedial steps
optional or required?
The remedial steps set out in Tenn. Code Ann. §§ 68-1-128(c)(3)(A)-(D) are required, if
relevant to the prescriber's practice. They are not optional.
Tennessee Code Annotated § 68-1-128 is part of the constellation of statutes that Tennessee
uses to regulate controlled substances. The statute generally deals with health care providers that
prescribe controlled substances and contains a subset of provisions addressing "frequent or high-
risk prescribers." Id. "High-risk prescribers" are identified "based on clinical outcomes, including
patient overdoses." Id. § 68-1-128(c)(1). By contrast, "frequent prescribers" are identified by the
volume of controlled substances prescribed. Id. § 68-1-128(a)(1)(A)-(B).
As a general matter, Section 68-1-128(c) lays out a series of requirements for regulators in
dealing with "high-risk prescribers." Id. §§ 68-1-128(c)(1)-(3). It begins at a high level of
generality by tasking the Department of Health with identifying "high-risk prescribers," and from
there, with increasing specificity, adds requirements that either the Department or a prescriber's
The law commands that a high-risk prescriber "shall be subject to selected chart review
and investigation by the [Department of Health]." Id. § 68-1-128(c)(1). And that "the department
shall submit the high-risk prescriber's information to the board that issued the prescriber's license
for appropriate action." Id. § 68-1-128(c)(2).
The statute offers further instruction for what the pertinent licensing board must do once it
receives the high-risk prescriber's information. Section 68-1-128(c)(3) directs that "[u]pon
STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
January 3, 2025
Opinion No. 25-001
Requirements for High-Risk Prescribers under Tenn. Code Ann. §§ 68-1-128(c)(3)(A)–(D)
Question
Tennessee Code Annotated § 68-1-128(c) requires the Tennessee Department of Health to
identify high-risk prescribers of controlled substances. Once identified by the Department, Tenn.
Code Ann. § 68-l-128(c)(3) requires the Department to forward the prescriber's information to the
appropriate licensing board. The statute states that the licensing board "shall notify the prescriber"
of his or her high-risk status and "as applicable, require the prescriber to" undertake a series of
remedial steps defined in Tenn. Code Ann. §§ 68-1-128(c)(3)(A)–(D). Are those remedial steps
optional or required?
Opinion
The remedial steps set out in Tenn. Code Ann. §§ 68-1-128(c)(3)(A)–(D) are required, if
relevant to the prescriber's practice. They are not optional.
ANALYSIS
Tennessee Code Annotated § 68-1-128 is part of the constellation of statutes that Tennessee
uses to regulate controlled substances. The statute generally deals with health care providers that
prescribe controlled substances and contains a subset of provisions addressing "frequent or high-
risk prescribers." Id. "High-risk prescribers" are identified "based on clinical outcomes, including
patient overdoses." Id. § 68-1-128(c)(1). By contrast, "frequent prescribers" are identified by the
volume of controlled substances prescribed. Id. § 68-1-128(a)(1)(A)–(B).
As a general matter, Section 68-1-128(c) lays out a series of requirements for regulators in
dealing with "high-risk prescribers." Id. §§ 68-1-128(c)(1)–(3). It begins at a high level of
generality by tasking the Department of Health with identifying "high-risk prescribers," and from
there, with increasing specificity, adds requirements that either the Department or a prescriber's
licensing board must take.
The law commands that a high-risk prescriber "shall be subject to selected chart review
and investigation by the [Department of Health]." Id. § 68-1-128(c)(1). And that "the department
shall submit the high-risk prescriber's information to the board that issued the prescriber's license
for appropriate action." Id. § 68-1-128(c)(2).
The statute offers further instruction for what the pertinent licensing board must do once it
receives the high-risk prescriber's information. Section 68-1-128(c)(3) directs that "[u]pon
receiving information pursuant to subdivision (c)(2), the licensing board shall notify the prescriber
and, if applicable, the prescriber's collaborating physician of the prescriber's identification as a
high-risk prescriber and, as applicable, require the prescriber to" undertake a series of remedial
steps defined in Tenn. Code Ann. § 68-1-128(c)(3)(A)-(D). These remedial measures include:
(A) participation in continuing education, (B) making available certain literature on the risks and
consequences of opioid addiction in the prescriber's waiting room and clinical areas, (C) requiring
specific additional consent from patients if the prescriber treats patients that "receive opioid
therapy for more than three (3) weeks with daily dosages of sixty (60) morphine milligram
equivalents (MME) or higher," and (D) require that the special consent be renewed every four
weeks. See, e.g., id. Tenn. Code Ann. §§ 68-1-128(c)(3)(A)-(D).
With that statutory background in mind, the language in Tenn. Code Ann. § 68-1-128(c)(3)
is best understood as requiring the remedial actions outlined in subdivisions Tenn. Code Ann.
§§ 68-1-128(c)(3)(A)-(D), to the extent they are relevant to the provider's practice. It should not
be read as making subdivisions Tenn. Code Ann. §§ 68-1-128(c)(3)(A)-(D) optional.
The Tennessee Supreme Court has explained that the goal of interpreting a Tennessee
statute is "to determine what a statute means." Waldschmidt v. Reassure Am. Life Ins. Co., 271
and giving them their "natural and ordinary meaning in the context in which they appear. "
Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015) (quoting Johnson V. Hopkins, 432
S.W.3d 840, 848 (Tenn. 2013)). Starting always with the statute's text, "[i]n the absence of
statutory definitions, [an interpreter looks] to authoritative dictionaries published around the time
of a statute's enactment." State v. Deberry, 651 S.W.3d 918, 925 (Tenn. 2022) (citing State v.
Edmondson, 231 S.W.3d 925, 928 & n.3 (Tenn. 2007)). Beyond definitions, the text as a whole
must be considered using cannons of statutory construction. See, e.g., Bailey v. Blount Cnty. Bd.
of Educ., 303 S.W.3d 216, 228 (Tenn. 2010).
Section 68-1-128(c)(3) was passed into law in 2017. Contemporaneous dictionaries define
"appliable" as: "Capable of being applied;" in the case of a rule, regulation, or law "affecting or
relating to a particular person, group, or situation; having direct relevance." BLACK'S LAW
DICTIONARY 123-24 (11th ed. 2019). Other dictionaries offer nearly the same definition: "Capable
of being applied; relevant or appropriate." AMERICAN HERITAGE DICTIONARY 86 (5th ed. 2016).
And also: "Capable of or suitable for being applied." MERRIAM-WEBSTER COLLIGATE
DICTIONARY 60 (11th ed. 2007).
These dictionaries define "require" or "requirement" as: "Something that must be done
because of a law or rule; something legally imposed, called for or demanded; an imperative
command." BLACK'S LAW, supra, 1561. "To stipulate as obligatory by authority; to impose an
obligation on; compel." AMERICAN HERITAGE, supra, 1492. "To impose a compulsion or
command on: compel." MERRIAM-WEBSTER, supra, 1058.
Considering these definitions, "as appliable, require" in Tenn. Code Ann. § 68-1-128(c)(3)
plainly refers to mandating the "relevant or appropriate" remedial action that is "capable of being
applied" from the §§ 68-1-128(c)(3)(A)-(D) list. That is so even though not every enumerated
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receiving information pursuant to subdivision (c)(2), the licensing board shall notify the prescriber
and, if applicable, the prescriber's collaborating physician of the prescriber's identification as a
high-risk prescriber and, as applicable, require the prescriber to" undertake a series of remedial
steps defined in Tenn. Code Ann. §§ 68-1-128(c)(3)(A)–(D). These remedial measures include:
(A) participation in continuing education, (B) making available certain literature on the risks and
consequences of opioid addiction in the prescriber's waiting room and clinical areas, (C) requiring
specific additional consent from patients if the prescriber treats patients that "receive opioid
therapy for more than three (3) weeks with daily dosages of sixty (60) morphine milligram
equivalents (MME) or higher," and (D) require that the special consent be renewed every four
weeks. See, e.g., id. Tenn. Code Ann. §§ 68-1-128(c)(3)(A)–(D).
With that statutory background in mind, the language in Tenn. Code Ann. § 68-1-128(c)(3)
is best understood as requiring the remedial actions outlined in subdivisions Tenn. Code Ann.
§§ 68-1-128(c)(3)(A)–(D), to the extent they are relevant to the provider's practice. It should not
be read as making subdivisions Tenn. Code Ann. §§ 68-1-128(c)(3)(A)–(D) optional.
The Tennessee Supreme Court has explained that the goal of interpreting a Tennessee
statute is "to determine what a statute means." Waldschmidt v. Reassure Am. Life Ins. Co., 271
S.W.3d 173, 175 (Tenn. 2008). That is accomplished by looking at the words of the enactment
and giving them their "natural and ordinary meaning in the context in which they appear. . . ."
Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015) (quoting Johnson v. Hopkins, 432
S.W.3d 840, 848 (Tenn. 2013)). Starting always with the statute's text, "[i]n the absence of
statutory definitions, [an interpreter looks] to authoritative dictionaries published around the time
of a statute's enactment." State v. Deberry, 651 S.W.3d 918, 925 (Tenn. 2022) (citing State v.
Edmondson, 231 S.W.3d 925, 928 & n.3 (Tenn. 2007)). Beyond definitions, the text as a whole
must be considered using cannons of statutory construction. See, e.g., Bailey v. Blount Cnty. Bd.
of Educ., 303 S.W.3d 216, 228 (Tenn. 2010).
Section 68-1-128(c)(3) was passed into law in 2017. Contemporaneous dictionaries define
"appliable" as: "Capable of being applied;" in the case of a rule, regulation, or law "affecting or
relating to a particular person, group, or situation; having direct relevance." BLACK'S LAW
DICTIONARY 123–24 (11th ed. 2019). Other dictionaries offer nearly the same definition: "Capable
of being applied; relevant or appropriate." AMERICAN HERITAGE DICTIONARY 86 (5th ed. 2016).
And also: "Capable of or suitable for being applied." MERRIAM-WEBSTER COLLIGATE
DICTIONARY 60 (11th ed. 2007).
These dictionaries define "require" or "requirement" as: "Something that must be done
because of a law or rule; something legally imposed, called for or demanded; an imperative
command." BLACK'S LAW, supra, 1561. "To stipulate as obligatory by authority; to impose an
obligation on; compel." AMERICAN HERITAGE, supra, 1492. "To impose a compulsion or
command on: compel." MERRIAM-WEBSTER, supra, 1058.
Considering these definitions, "as appliable, require" in Tenn. Code Ann. § 68-1-128(c)(3)
plainly refers to mandating the "relevant or appropriate" remedial action that is "capable of being
applied" from the §§ 68-1-128(c)(3)(A)–(D) list. That is so even though not every enumerated
remedial measure might be suitable for application to every high-risk prescriber. For example,
§ 68-1-128(c)(3)(C) and § 68-1-128(c)(3)(D) refer to special consent that must be obtained from
patients who receive high daily doses of opioids for more than three weeks. Ibid. Not every high-
risk prescriber might have such a patient, nevertheless, the remaining clauses are still "capable of
being applied" to a given high-risk prescriber. And a licensing board must do so under Tenn. Code
Ann. § 68-1-128(c)(3).
Confirming this interpretation is the cannon against surplusage. See, e.g., ANTONIN SCALIA
& BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 174-79 (2012). The
Tennessee Supreme Court presumes that "the General Assembly use[s] each word in a statute
deliberately." State v. Strode, 232 S.W.3d 1, 11-12 (Tenn. 2007) (citing State v. Jennings, 130
S.W.3d 43, 46 (Tenn. 2004). Accordingly, an interpreter generally aims to "give effect to every
word, phrase, clause, and sentence in constructing a statute." Id. (citation omitted). If "as
applicable" was read to be 'optional,' it would render nugatory the reticulated scheme in
subdivisions Tenn. Code Ann. §§ § § 68-1-128(c)(3)(A)-(D) that the legislature provided. It would
also negate the statute's clear statement that these remedial measures are "require[d]."
Neither the text nor context suggests that the remedial measures in subdivisions Tenn. Code
Ann. §§ 68-1-128(c)(3)(A)-(D) are optional. They should be treated as requirements and
mandated for high-risk prescribers "as applicable."
J. MATTHEW RICE
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remedial measure might be suitable for application to every high-risk prescriber. For example,
§ 68-1-128(c)(3)(C) and § 68-1-128(c)(3)(D) refer to special consent that must be obtained from
patients who receive high daily doses of opioids for more than three weeks. Ibid. Not every high-
risk prescriber might have such a patient, nevertheless, the remaining clauses are still "capable of
being applied" to a given high-risk prescriber. And a licensing board must do so under Tenn. Code
Ann. § 68-1-128(c)(3).
Confirming this interpretation is the cannon against surplusage. See, e.g., ANTONIN SCALIA
& BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 174–79 (2012). The
Tennessee Supreme Court presumes that "the General Assembly use[s] each word in a statute
deliberately." State v. Strode, 232 S.W.3d 1, 11–12 (Tenn. 2007) (citing State v. Jennings, 130
S.W.3d 43, 46 (Tenn. 2004). Accordingly, an interpreter generally aims to "give effect to every
word, phrase, clause, and sentence in constructing a statute." Id. (citation omitted). If "as
applicable" was read to be 'optional,' it would render nugatory the reticulated scheme in
subdivisions Tenn. Code Ann. §§ 68-1-128(c)(3)(A)–(D) that the legislature provided. It would
also negate the statute's clear statement that these remedial measures are "require[d]."
Neither the text nor context suggests that the remedial measures in subdivisions Tenn. Code
Ann. §§ 68-1-128(c)(3)(A)–(D) are optional. They should be treated as requirements and
mandated for high-risk prescribers "as applicable."
JONATHAN SKRMETTI
Attorney General and Reporter
J. MATTHEW RICE
Solicitor General
AARON L. BERNARD
Assistant Solicitor General
Requested by:
The Honorable Randy McNally
Lieutenant Governor
Cordell Hull Building, Suite 700
425 Rep. John Lewis Way North
Nashville, Tennessee 37243