In Tennessee, can a licensed practical nurse (LPN), not just a registered nurse (RN), supervise a certified medication aide who administers drugs in a nursing home?

Plain-English summary

In 2009, Tennessee created a new credential called the "medication aide certified," allowing certain trained nurse aides to administer medications in nursing homes and assisted-care living facilities under the supervision of a "licensed nurse." Tenn. Code Ann. § 63-7-127.

A dispute arose during rulemaking: did "licensed nurse" mean only a registered nurse (RN), or could a licensed practical nurse (LPN) also serve as the supervising nurse? The Board of Nursing favored RN-only supervision; the Legislature pushed back with SB3144/HB3368, which expressly defined "licensed nurse" to include either an RN or an LPN.

Representative JoAnne Favors asked the AG whether the proposed bill would conflict with Tenn. Code Ann. § 63-7-108 (which defines the practice of practical nursing) by creating an impermissible chain of supervision.

The AG said no. The bill would clarify that an LPN can re-delegate the medication-administration task to a medication aide certified, after the LPN herself has received that delegation from a physician, dentist, or RN. A licensed clinician higher up the chain (physician, dentist, or RN) still has to be in the picture, but the LPN can serve as the immediate supervisor of the aide.

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.

Common questions

Q: What is a "medication aide certified"?
A: A specially trained and credentialed individual who can administer medications in a nursing home or assisted-care living facility under the supervision of a licensed nurse. To qualify, the person must already be a certified nurse aide with at least one year of full-time experience, complete an approved training program, and pass a standardized exam (Tenn. Code Ann. § 63-7-127(e)–(j)).

Q: Can a medication aide take orders directly from a doctor?
A: No. Tenn. Code Ann. § 63-7-127(k)(3)(C) prohibits a medication aide from receiving medication orders directly from a physician or other prescriber. The aide must always act under delegation from a licensed nurse.

Q: What does "licensed practical nurse" mean in Tennessee?
A: Tenn. Code Ann. § 63-7-108 defines the "practice of practical nursing" as performing selected nursing acts for compensation and carrying out medical orders prescribed by a licensed physician or dentist, under the direction of a licensed physician, dentist, or registered nurse. An LPN has less educational preparation than an RN.

Q: Why did the Board of Nursing oppose LPN supervision?
A: The Board took the view that, because the medication aide program was new and the patient population (nursing home residents) was vulnerable, oversight should be tighter. Board Chair Dr. Cheryl Stegbauer told a House subcommittee that the Board wanted RN-only supervision until data could prove that broader supervision was safe.

Q: Did the AG endorse the policy choice in the bill?
A: No. The AG opinion is about whether the bill would conflict with existing statute, not whether it is wise. The opinion notes that "[a]dministrative regulations cannot be inconsistent with statutes on the same subject" (Methodist Healthcare-Jackson Hosp. v. Jackson-Madison Co. General Hosp. Dist., 129 S.W.3d 57, 69 (Tenn. Ct. App. 2003)), so once the Legislature speaks, the Board must implement.

Q: Are there limits on what medications an aide can give?
A: Yes. Tenn. Code Ann. § 63-7-127(k)(3), (4), and (5) restrict the kinds of medications and routes of administration aides can use. Some methods are also limited for LPNs themselves under Tenn. Comp. R. & Regs. 1000-02-.15.

Background and statutory framework

Tenn. Code Ann. § 63-7-127, effective July 1, 2009, created the medication-aide-certified credential. The statute set certification requirements, training-program standards, and limits on what aides could do. It assigned rulemaking to the Board of Nursing, which began drafting rules in early 2010.

The fight was over the term "licensed nurse." Tenn. Code Ann. § 63-7-127(a) and (k) refer to delegation by a "licensed nurse," but the statute does not define that term within the section. The Board read the term narrowly (RN only); legislators read it broadly (RN or LPN).

The proposed bill, SB3144/HB3368, added a new subsection (m) to § 63-7-127 stating that "[a] licensed nurse for the purpose of this section shall include a registered nurse, a licensed practical nurse, or either one." That settles the dispute by statute.

The AG's analysis traced the chain of authority. Under § 63-7-108, an LPN works under the direction of a physician, dentist, or RN. Under existing Board rules (Tenn. Comp. R. & Regs. 1000-02-.04(2)(c)), an LPN can supervise certain people who are exempt from the Nurse Practice Act. And under Tenn. Code Ann. § 63-7-102(13), medication aides certified are themselves exempt from the Nurse Practice Act when administering medication in accordance with chapter requirements. Combine those, and the AG concluded that a permissible chain runs from physician/dentist/RN, to LPN, to medication aide.

Importantly, the AG noted that under § 63-7-108, an RN does not always have to be in the chain: an LPN could receive medical orders directly from a physician or dentist and then re-delegate to an aide.

Citations and references

Statutes and rules:

• Tenn. Code Ann. § 63-7-127 (medication aides certified)
• Tenn. Code Ann. § 63-7-108 (practice of practical nursing)
• Tenn. Code Ann. § 63-7-102 (exemptions from Nurse Practice Act)
• Tenn. Comp. R. & Regs. 1000-02-.04(2)(c) (LPN supervision rules)
• Tenn. Comp. R. & Regs. 1000-01-.04(2)(c) (RN supervision rules)
• Tenn. Comp. R. & Regs. 1000-02-.15 (LPN medication-administration limits)

Cases:

• Methodist Healthcare-Jackson Hosp. v. Jackson-Madison Co. General Hosp. Dist., 129 S.W.3d 57 (Tenn. Ct. App. 2003) (administrative regulations cannot conflict with statute)
• Kaylor v. Bradley, 912 S.W.2d 728 (Tenn. Ct. App. 1995)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-065.pdf

Original opinion text

Medication Aides Certified

QUESTION

Senate Bill 3144/House Bill 3368 would amend Tenn. Code Ann. § 63-7-127 by adding a new subsection to clarify that, for the purposes of that section, a licensed nurse means a registered nurse or a licensed practical nurse. If a registered nurse is not specifically required in the chain of supervision, would this bill create a conflict with Tenn. Code Ann. § 63-7-108 by creating an impermissible chain of supervision?

OPINION

No. Senate Bill 3144/House Bill 3368, as amended, adds a new subsection (m) to Tenn. Code Ann. § 63-7-127 that clarifies that "[a] licensed nurse for the purpose of this section shall include a registered nurse, a licensed practical nurse, or either one." Thus, the proposed bill would clarify that a "medication aide certified" means an individual who administers medications as set forth in Tenn. Code Ann. § 63-7-127 under the general supervision of either a registered nurse or a licensed practical nurse pursuant to that section. In our view, this bill would not obviate the definition in Tenn. Code Ann. § 63-7-108 that the "practice of practical nursing" means the performance of selected acts required in the nursing care of the ill, injured or infirm and/or carrying out medical orders prescribed by a licensed physician or dentist under the direction of a licensed physician, dentist or professional registered nurse. Instead, by enacting this bill, the Legislature would clarify that a licensed practical nurse may re-delegate to a medication aide certified the task of administering medications that has been delegated to the licensed practical nurse by a licensed physician, dentist or registered nurse. In turn, Tenn. Code Ann. § 63-7-127(i)(2)(A)(x) requires the standard minimum curriculum in a medication aide training program to include the circumstances in which a medication aide certified should report to, or consult with, a licensed nurse regarding certain specific circumstances concerning a patient or patients to whom medications are administered.

ANALYSIS

Tenn. Code Ann. § 63-7-127, regarding the use of medication aides certified, took effect on July 1, 2009. That statute refers to the administration of medications by a medication aide certified as set forth in that section "under the general supervision of a licensed nurse" pursuant to that section. Tenn. Code Ann. § 63-7-127(a). Tenn. Code Ann. § 63-7-127(k)(1)(A) provides, in pertinent part, that "[a] medication aide shall administer medication only pursuant to delegation by a licensed nurse," while Tenn. Code Ann. § 63-7-127(k)(3)(C) prohibits a medication aide certified from directly receiving orders from a physician or other medication prescriber. Further, "[d]elegation of medication administration to a medication aide certified shall be carried out in accordance with the rules for nursing delegation adopted under this chapter by the board of nursing." Tenn. Code Ann. § 63-7-127(k)(1)(B).

The statute provides that medication aides certified must hold a current, valid medication aide certificate issued by the Board of Nursing under the section. Tenn. Code Ann. § 63-7-127(b). The conditions for eligibility and the renewal requirements for such certification are set out in Tenn. Code Ann. § 63-7-127(e) – (g), and among these is the prerequisite that a medication aide certified first must be duly certified as a nurse aide under the standards established by federal law and Title 68, Chapter 11, Part 2 and have practiced as a certified nurse aide in a nursing home or assisted-care living facility for a minimum of one year, on a full-time basis, at the time the applicant submits an application for certification as a medication aide under Tenn. Code Ann. § 63-7-127. In addition to meeting other conditions as are set out in Tenn. Code Ann. § 63-7-127(e), an applicant for a medication aide certificate also shall successfully complete a course of instruction provided by a training program approved by the Board under Tenn. Code Ann. § 63-7-127(i) and pass a standardized examination as described in Tenn. Code Ann. § 63-7-127(j). Tenn. Code Ann. § 63-7-127(e).

The statute further requires that the Board shall adopt rules to implement the provisions of Tenn. Code Ann. § 63-7-127, and that initial rules shall be approved for a rulemaking hearing no later than February 1, 2010. The rules to be adopted under that section shall establish or specify five (5) specific areas, including fees, in an amount to cover the Board's costs in implementing the above section; procedures for renewal of medication aide certificates; grounds for discipline of applicants or certificate holders, or both; standards for approval of peer support programs for the holders of medication aide certificates; and procedures for approval or denial of medication aide training programs. Tenn. Code Ann. § 63-7-127(l). The Board did hold a rulemaking hearing on January 21, 2010; however, some confusion arose about the statute and the scope of the Board's authority to craft rules regarding oversight of medication aides certified.

On March 9, 2010, during a discussion of the proposed bill, Nursing Board Chair Dr. Cheryl Stegbauer informed the House Health and Human Resources Professional Occupations Subcommittee that it was not the Board's intent to arbitrarily go against the will of the Legislature, and that she was not sure that the charge that the Legislature gave the Board was clear regarding whether the term licensed nurse required inclusion of both a licensed practical nurse and a registered nurse [in the rules to be adopted implementing the provisions of Tenn. Code Ann. § 63-7-127]. Further, Dr. Stegbauer admitted that the Board does not support the amendment to the bill and explained:

The Medication Aide program is a new program. The Board is acting with due caution, with appropriate supervision in our rules, as the Medication Aide program begins. Once we have data from the Tennessee Medication Aide program we can determine whether it's safe to broaden the terms of supervision. We had rather have tighter oversight with such a new program that involves a vulnerable population than to try to be more restrictive after error has occurred. The issue for the Board is the responsibility for public safety. Oversight and supervision of these aides is critical. We want to prevent harm if at all possible, and I know that the legislators do also.

Therefore, Senate Bill 3144/House Bill 3368, as amended, adds a new subsection (m) to Tenn. Code Ann. § 63-7-127, which provides that "[a] licensed nurse for the purpose of this section shall include a registered nurse, a licensed practical nurse, or either one." If this bill is enacted, it will clarify the Legislature's intent that the Board of Nursing's rules shall include provisions for general supervision over a medication aide certified by a registered nurse, a licensed practical nurse, or either one. Although Board members (as well as certain legislators) have questioned the wisdom of permitting a licensed practical nurse to oversee a medication aide certified's administration of medication, if this bill is enacted the Legislature will have spoken and it will be the Board's duty to promulgate rules that carry out the intent of the Legislature. "Administrative regulations cannot be inconsistent with statutes on the same subject." Methodist Healthcare-Jackson Hosp. v. Jackson-Madison Co. General Hosp. Dist., 129 S.W.3d 57, 69 (Tenn. Ct. App. 2003) (citing Kaylor v. Bradley, 912 S.W.2d 728, 734 (Tenn. Ct. App. 1995)).

Tenn. Code Ann. § 63-7-108 defines the "practice of practical nursing" as "the performance for compensation of selected acts required in the nursing care of the ill, injured or infirm and/or carrying out medical orders prescribed by a licensed physician or dentist under the direction of a licensed physician, dentist or registered nurse." That section provides further that "[t]he licensed practical nurse shall have preparation in and understanding of nursing, but shall not be required to have the same degree of education and preparation as required of a registered nurse." Under existing Board rules, in certain circumstances a licensed practical nurse may delegate and supervise the performance of particular tasks by certain other persons who are exempt from the provisions of the Nurse Practice Act, although at present those delegable tasks that are described in the Board's current rules do not include the administration of medication. For example, Tenn. Code Ann. § 63-7-102(2) exempts from the provisions of the Nurse Practice Act, Tenn. Code Ann. §§ 63-7-101, et seq., "[p]ersons employed in the office of a licensed physician or dentist, assisting in the nursing care of patients where adequate medical or nursing supervision or both is provided." In turn, Tenn. Comp. R. & Regs. 1000-02-.04(2)(c), contained in the Rules and Regulations of Licensed Practical Nurses, exempts the following:

Persons employed in institutions, agencies, or in the office of a licensed physician or dentist, assisting in the nursing care of patients where adequate medical or nursing supervision or both is provided. Assisting is defined to mean helping, aiding, or cooperating. Adequate supervision is defined to mean overseeing and inspecting with authority. The basic responsibility of the individual nurse who is required to supervise others is to determine which of the nursing needs can be delegated safely to others, and to determine whether the individual to whom the duties are entrusted must be supervised personally.

The rule goes on to describe certain tasks that are commonly performed by such persons. Tenn. Comp. R. & Regs. 1000-02-.04(2)(c)1-11. Similarly, the analogous Rules and Regulations for Registered Nurses, Tenn. Comp. R. & Regs. 1000-01-.04(2)(c), contain the same requirements as applied to registered nurses.

Therefore, when the above provisions are coupled with the separate and specific exemption from the provisions of the Nurse Practice Act for medication aides certified that is found in Tenn. Code Ann. § 63-7-102(13), it does appear that there would exist a permissible chain of supervision wherein the physician, dentist or registered nurse delegates the task of administering medication to a licensed practical nurse under Tenn. Code Ann. § 63-7-108 who, in turn, re-delegates such task to a medication aide certified. Thus, a registered nurse or a physician or dentist necessarily remains in such chain of supervision/delegation, and a medication aide who holds a current, valid medication aide certificate under that chapter may administer medications as set forth in Tenn. Code Ann. § 63-7-127 to the residents of nursing homes or assisted care living facilities that use medication aides pursuant to that section, but a medication aide "shall administer medications only pursuant to delegation by a licensed nurse." Tenn. Code Ann. § 63-7-127(k)(1)(A). However, we would also caution that certain methods of medication administration by licensed practical nurses are prohibited or circumscribed by Tenn. Comp. R. & Regs. 1000-02-.15; and that medication aides certified are prohibited from administering certain medications and/or using certain methods of medication administration specified in Tenn. Code Ann. § 63-7-127(k)(3),(4) and (5).

Thus, by enacting Senate Bill 3144/House Bill 3368, as amended, the Legislature would clarify that a "medication aide certified" means an individual who administers medications as set forth in Tenn. Code Ann. § 63-7-127 under the general supervision of either a registered nurse or a licensed practical nurse pursuant to that section. In our view, this bill would not obviate the definition in Tenn. Code Ann. § 63-7-108 that the "practice of practical nursing" means the performance of selected acts required in the nursing care of the ill, injured or infirm and/or carrying out medical orders prescribed by a licensed physician or dentist under the direction of a licensed physician, dentist or professional registered nurse. Instead, by enacting this bill, the Legislature would clarify that a licensed practical nurse may re-delegate to a medication aide certified the task of administering medications that has been delegated to the licensed practical nurse by a licensed physician, dentist or registered nurse. In turn, Tenn. Code Ann. § 63-7-127(i)(2)(A)(x) requires the standard minimum curriculum in a medication aide training program to include the circumstances in which a medication aide certified should report to, or consult with, a licensed nurse regarding certain specific circumstances concerning a patient or patients to whom medications are administered.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

SARA E. SEDGWICK
Senior Counsel

Requested by:

Honorable JoAnne Favors
State Representative
25 Legislative Plaza
Nashville, Tennessee, TN 37243-0102