Do Tennessee's health-related licensing boards have to follow the state Central Procurement Office's rules when they hand out impaired-professional peer-assistance grants?

Plain-English summary

Tennessee's health-related licensing boards (medicine, nursing, dentistry, and so on, attached to the Division of Health-Related Boards in the Department of Health) are statutorily charged with helping to rehabilitate impaired licensees. Tenn. Code Ann. § 63-1-136 authorizes them to "enter into agreements, provide grants and make other arrangements" with statewide nonprofit professional associations or their affiliated foundations to identify and assist impaired professionals.

The question was whether that grant authority sat outside the state's general procurement framework, or whether the boards had to run those peer-assistance grants through the procurement statutes (Title 12, Chapters 3 and 5; §§ 4-56-101, -107, -108) and the rules of the Central Procurement Office (Tenn. Comp. R. & Regs. 0690-03-01-.01 to -.28).

The AG concluded the boards are not exempt and the procurement framework does apply. The reasoning is straightforward: the procurement statutes list the branches and contract types that are exempt, and health-related regulatory boards (an executive-branch unit) are not on the list. Tenn. Code Ann. § 12-3-101 requires all goods and services to be purchased and contracted for by the Central Procurement Office consistent with chapter requirements and CPO-approved rules. The CPO rules at 0690-03-01-.15(4) and (5)(e) expressly address grants, requiring documentation of competitive or noncompetitive grantee selection. Reading § 63-1-136 in pari materia with the later procurement statutes (under the canons in Shorts v. Bartholomew, Cronin v. Howe, and Wilson v. Johnson County), the AG concluded the more recent procurement regime overlays § 63-1-136's grant authority rather than displacing it. So peer-assistance grants must be issued in compliance with CPO rules.

Currency note

This opinion was issued in 2014. 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 an "impaired professional" in this context?
A: A health-care licensee whose practice is or may be affected by physical or mental illness, including substance use disorders. Section 63-1-136 reflects the General Assembly's policy that the licensing boards should help rehabilitate these practitioners, not just discipline them.

Q: Do the procurement rules force the boards to do a competitive process for every peer-assistance grant?
A: Not necessarily. The CPO rules contemplate both competitive and noncompetitive grants. What the rules require is documentation of which path was used and, for noncompetitive grants, the reasons. The summary documentation has to be provided to the Central Procurement Office with the Grant Contract as a condition for approval.

Q: What's the practical effect for nonprofit professional associations that historically ran these programs?
A: At the time, an association seeking a noncompetitive sole-source grant had to be prepared to support a documented sole-source justification. Competitive grants triggered the normal RFA/RFP-style selection.

Q: Why didn't § 63-1-136 trump the later procurement statutes?
A: The opinion applies in pari materia and the presumption that the legislature acts with awareness of existing statutes. The 2011–2013 procurement reforms are general overlays. Nothing in those reforms expressly repealed or modified § 63-1-136, and nothing in § 63-1-136 expressly exempted these boards from later-enacted general procurement rules.

Background and statutory framework

Tennessee restructured its state-procurement system, creating the Central Procurement Office, a procurement commission, a state protest committee, and the position of chief procurement officer. The CPO's authority extends to a central contract management process and a central grant management process. Tenn. Code Ann. § 4-56-105(4)(B), (C). The CPO's rules then implemented the grant-process requirements with specific documentation duties at Tenn. Comp. R. & Regs. 0690-03-01-.15(4).

The opinion's pin-cite to § 12-3-101 is the key statutory hook for the general rule. The list of exemptions in § 12-3-102 then defines who escapes that general rule, and health-related boards are not on it. The interpretive canons cited (Shorts, Cronin, Wilson) all stand for harmonizing statutes that touch the same subject so that both retain force.

Citations and references

Statutes and regulations:

• Tenn. Code Ann. § 63-1-136 (impaired-professional peer assistance grants)
• Tenn. Code Ann. §§ 4-56-101 to -106 (procurement framework: CPO, procurement commission, advisory council)
• Tenn. Code Ann. § 4-56-105(4)(B), (C) (central contract and grant management processes)
• Tenn. Code Ann. §§ 4-56-107, -108 (noncompetitive review; approval of contracts and grants)
• Tenn. Code Ann. §§ 12-3-101, 12-3-102 (general purchasing requirement; exemptions list)
• Tenn. Comp. R. & Regs. 0690-03-01-.01 to -.28 (CPO procurement rules)
• Tenn. Comp. R. & Regs. 0690-03-01-.15(4), (5)(e) (grantee selection documentation)

Cases:

• Shorts v. Bartholomew, 278 S.W.3d 268 (Tenn. 2009) (Tennessee Supreme Court; presumption of legislative awareness)
• Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995) (Tennessee Supreme Court; in pari materia)
• Wilson v. Johnson Cnty., 879 S.W.2d 807 (Tenn. 1994) (Tennessee Supreme Court)

Subject

Opinion No. 14-98, Procurement Requirements for Tennessee Health-Related Regulatory Boards, October 30, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-098.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 30, 2014
Opinion No. 14-98
Procurement Requirements for Tennessee Health-Related Regulatory Boards

QUESTIONS

1. When providing grants and entering into agreements to assist impaired professionals pursuant to Tenn. Code Ann. § 63-1-136, is a Tennessee health-related regulatory board exempt from the procurement requirements in Title 12, Chapters 3 and 5, and §§ 4-56-101, -107, and -108 of the Tennessee Code and the rules of the Central Procurement Office, Tenn. R. & Regs. 0690-03-01-.01 to -.28?

2. Do the procurement requirements in Title 12, Chapters 3 and 5, and § 4-56-107 of the Tennessee Code and the rules of the Central Procurement Office, Tenn. Comp R. & Regs. 0690-03-01-.01 to -.28, apply to grant contracts for peer assistance issued by health-related regulatory boards under Tenn. Code Ann. § 63-1-136?

OPINIONS

1. No.
2. Yes.

ANALYSIS

Regulatory boards, commissions, and agencies attached to the Division of Health-Related Boards in the Tennessee Department of Health, in addition to other powers and duties, "have as their purpose assistance in the rehabilitation of impaired health practitioners" whom the respective boards, commissions, and agencies license, certify, or register. Tenn. Code Ann. § 63-1-136(a). Under subsection (b) of § 63-1-136, such regulatory boards, commission, and agencies "have the power to enter into agreements, provide grants and make other arrangements with statewide nonprofit professional associations or their affiliated foundations to identify and assist impaired professionals who are licensed, registered or certified by the respective regulatory boards, commissions and agencies" (emphasis added).

Tenn. Code Ann. § 63-1-136 was enacted in 1992 and amended once, in 2003. Since 2011, however, the General Assembly has enacted new statutes and revised existing statutes dealing with state procurement matters. This legislation has revamped the procurement process and provides for general oversight and management of state procurement. Tenn. Code Ann. §§ 4-56-101 to -106 created a procurement commission, a state protest committee, a central procurement office, the position of chief procurement officer, and an advisory council. These statutes now govern how procurement contracts and grants are to be made. The powers and duties of the chief procurement officer in § 4-56-105 include the authority to develop rules and regulations, policies, standards, and procedures, consistent with Chapter 56 of Title 4 and with Chapters 3 and 4 of Title 12 (dealing with public purchases and public contracts), to be approved by the procurement commission. Tenn. Code Ann. § 4-56-105(4). Such rules, polices, and standards shall establish, among other things, a "central contract management process" and a "central grant management process." Id. § 4-56-105(4)(B), (C).

The rules of the Central Procurement Office address grants and make specific provision for competitive and noncompetitive grants:

Grantee Selection Process.

(a) The Grantor State Agency shall document the Grantee selection process specifying whether it was competitive or non-competitive and detailing reasons for noncompetitive selections. The Grantor State Agency shall also provide a summary of said documentation to the Central Procurement Office with the Grant Contract as a condition for approval. The Central Procurement office shall maintain a record of the selection process.

Tenn. Comp. R. & Regs. 0690-03-01-.15(4) (emphasis added); see also id. 0690-03-01-.15(5)(e) (making similar provision for endowment grants).

Tenn. Code Ann. § 12-3-101 provides that "all goods and services . . . shall be purchased and contracted for by the central procurement office consistent with the requirements of this chapter and any rules, regulations or policies and procedures approved by the procurement commission." Tenn. Code Ann. § 12-3-102 sets forth the branches of government and types of contracts that are exempt from this requirement. The executive branch is not exempt, and neither is any contract entered into by a health-related regulatory board. Therefore, a health-related regulatory board is not exempt from the procurement requirements of these statutes or the rules of the Central Procurement Office.

A well-established principle of statutory construction provides that when the General Assembly enacts a statute, it is presumed to be aware of other statutes relating to the same subject matter, and unless the new statute expressly repeals or amends the older statute, the new provision is presumed to be in accord with the policy embodied in the prior statute. See Shorts v. Bartholomew, 278 S.W.3d 268, 277 (Tenn. 2009). A related principle is that statutes relating to the same subject should be interpreted in pari materia, i.e., construed together and in such a way that they are in harmony rather than in conflict. See Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995); Wilson v. Johnson Cnty., 879 S.W.2d 807, 809 (Tenn. 1994). The more recent legislation that revises the statutory scheme for procurement must therefore be read in conjunction with the existing provisions of Tenn. Code Ann. § 63-1-136, which merely authorize health-related regulatory boards to enter into agreements and provide grants for peer assistance. The new legislation reflects the legislature's intent to establish a central management system for how procurement contracts and grants are to be created. Applying these principles of statutory construction leads to the conclusion, therefore, that the statutes and rules of the Central Procurement Office apply to grant contracts for peer assistance awarded by health-related regulatory boards.

HERBERT H. SLATERY III
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JANIE C. PORTER
Senior Counsel

Requested by:
The Honorable John Dreyzehner
Commissioner, Tennessee Department of Health
5th Floor, Andrew Johnson Tower
Nashville, Tennessee 37243