[1993/oagheade.htm]

OAG 93-36

April 21, 1993

Richard L. Ross

Kentucky Board of Pharmacy

1228 U.S. 127 South

Frankfort, Kentucky 40601

Dear Mr. Ross:

You have asked whether pharmacists may legally fill prescriptions written by advanced registered nurse practitioners. We conclude that they may not.

Because the applicable state statutes are to some extent an implementation of federal law, our analysis begins with the Federal Food, Cosmetic, and Drug Act. That Act, at 21 U.S.C. �353(b), states that a drug which “because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such drug . . . shall be dispensed only . . . upon a written prescription of a practitioner licensed by law to administer such drug . . . .” The Food and Drug Administration determines what are prescription drugs, National Nutritional Food Association v. Weinberger, 512 F.2d 680 (CA2 1975), while the term “practitioner” is left for the individual states to define. Winograd v. Johnson, 561 P.2d 1274 (Col. App. 1976). We therefore must look to Kentucky statutes to determine how the state has identified practitioners who are “licensed by law to administer such drug[s].”

We turn next to KRS chapter 315, which provides for the licensing and regulation of pharmacies and pharmacists. That chapter does not state to whom a pharmacist may dispense drugs; that is to say, it does not state that a prescription from a particular class of practitioners is necessary before a pharmacist may dispense so-called prescription drugs.

KRS chapter 217 contains the Kentucky Food, Drug, and Cosmetic Act. Like chapter 315, it does not succinctly state under what circumstances a prescription may be filled; rather it regulates the labeling of drugs and provides penalties for the selling of misbranded drugs. It is this labeling requirement that provides the rule that prescription drugs can be dispensed only on the order of a qualified person. Section 11(b) of KRS 217.065 provides the labeling requirement for drugs that, under federal law, may be dispensed only by prescription. It says that such a drug is misbranded “unless it is dispensed or sold on a prescription of an authorized practitioner and its label (as dispensed) bears the name and place of business of the dispenser or seller, the serial number and date of such prescription, and the name of such licensed practitioner.”

The quoted statute thus refers to the writer of a valid prescription as an “authorized practitioner” and a “licensed practitioner.” The term “practitioner” is defined in KRS 217.015(23) to mean:

medical or osteopathic physicians, dentists, chiropodists, and veterinarians who are licensed under the professional licensing laws of Kentucky to prescribe and administer drugs and devices; it shall also include optometrists when administering or prescribing pharmaceutical agents authorized in subsections (13), (14), and (15) of KRS 320.240[.]

This statute is quite clear in identifying only five classes of practitioners who may write prescriptions: medical or osteopathic physicians, dentists, chiropodists (also called podiatrists), veterinarians, and with some limitations, optometrists. But mere inclusion in this short list is not enough; the practitioners must also be “licensed under the professional licensing laws of Kentucky to prescribe and administer drugs.” Turning to the specific licensing chapters, we find that medical and osteopathic physicians enjoy a broad grant of authority to treat human patients “by any and all means, methods, devices, or instrumentalities,” which presumably includes the prescription of drugs. KRS 311.550(10). Dentists, veterinarians, and optometrists are specifically authorized to write prescriptions. KRS 313.250; KRS 321.181(5); KRS 320.240. The prescription-writing authority granted to podiatrists is less clear, but presumably it derives from their authority to treat the human foot “by employment of medical, surgical or other means.” KRS 311.380(2). Thus, in every category of medical practitioner specified in KRS 217.015(23), the applicable licensing statutes provide that the practitioner is “licensed under the professional licensing laws of Kentucky to prescribe and administer drugs and devices.”

In contrast to these five groups of medical practitioners, advanced registered nurse practitioners are not mentioned in the Kentucky Food, Drug, and Cosmetic Act, nor does any other statute grant them specific authority to write prescriptions. The statute defining their scope of practice merely refers to “the performance of additional acts by registered nurses who have gained added knowledge and skills . . . .” KRS 314.011(8). Even if advanced registered nurse practitioners were among the practitioners enumerated in KRS 217.015(23), there is nothing in KRS 314.011(8) to suggest that the legislature intended them to have prescription-writing authority.

In fact, there is some evidence of legislative intent that advanced registered nurse practitioners not be authorized to write prescriptions. In the last three regular sessions of the General Assembly, legislation that would have granted such authority was introduced but did not pass. HB 807, 1988; HB 86, 1990; HB 93 and HB 310, 1992.

Because advanced registered nurse practitioners are not named among the practitioners listed in KRS 217.015(23), and because their licensing statute does not state that they are licensed to prescribe drugs, we conclude that advanced registered nurse practitioners are not authorized by state law to write prescriptions, and consequently pharmacists are not authorized to fill such prescriptions.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601