Can a Georgia physician's assistant write prescriptions for controlled substances and obtain a DEA registration number?

Plain-English summary

The Composite State Board of Medical Examiners asked whether Georgia physician's assistants could prescribe controlled substances and obtain a federal DEA number. The statutory landscape was confused. A 1989 statute (O.C.G.A. § 43-34-26.1) had let physicians delegate "ordering" of drugs to PAs but explicitly said this was not prescribing and did not allow a written prescription. A 1995 amendment to the Physician's Assistant Act (O.C.G.A. § 43-34-103(e.1)) then let PAs "carry out" a prescription drug or device order on a special form, including for Schedule III, IV, and V controlled substances. The AG worked through the conflict and concluded that the 1995 statute superseded the 1989 limitation. PAs could prescribe these controlled substances under physician supervision and pursuant to an approved job description, and could therefore register with the DEA. PAs were still excluded from Schedule I and II prescriptions.

Currency note

This opinion was issued in 2000. 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.

Historical context

Georgia first recognized physician's assistants in 1972 with the Physician's Assistant Act (Article 4, Chapter 34 of Title 43). The Act authorized delegation of medical tasks from physicians to PAs under approved job descriptions, with the Composite State Board of Medical Examiners as the gatekeeper for what tasks could be delegated. Cardio TVP Surgical Associates v. Gillis, 272 Ga. 404 (2000), confirmed that the Board had exclusive authority to determine the nature and scope of medical tasks PAs could perform.

The original Act said nothing about prescribing. In 1989, the General Assembly added § 43-34-26.1, which authorized physicians to delegate to a PA "the authority to order controlled substances selected from a formulary . . . established by the Composite State Board of Medical Examiners and the authority to order dangerous drugs, medical treatments, and diagnostic studies." But the same statute drew a sharp line: "[o]rdering under such delegation shall not be construed to be prescribing, which act can only be performed by the physician, nor shall ordering of a drug be construed to authorize the issuance of a written prescription." So as of 1989, PAs could "order" but not "prescribe."

In 1995, the General Assembly added § 43-34-103(e.1), which said: "[i]n addition to the authority granted by Code Section 43-34-26.1, a physician's assistant shall be allowed to carry out a prescription drug order or orders for any device . . . any dangerous drug . . . or any Schedule III, IV, or V controlled substance . . . on a prescription drug order or prescription device order form . . . pursuant to the authority delegated by the supervising physician of that physician's assistant." The statute defined "carry out" in § 43-34-102(2) as completing a written prescription order on a board-approved form. Subsection (e.1)(2) talked about pharmacists filling prescriptions "issued by a physician's assistant," and subsection (e.1)(8) said a PA "is not permitted to prescribe drugs or devices except as authorized in the physician's assistant's job description." All of this language treated PAs as engaging in the act of prescribing.

In 1999, the General Assembly amended the Georgia Controlled Substances Act to add a new subparagraph to O.C.G.A. § 16-13-21(23)(C), expressly defining PAs as "practitioners" who could register with the federal DEA and the appropriate state authorities and dispense controlled substances "as provided in Code Section 43-34-103(e.1)." That last piece confirmed legislative intent: PAs were prescribers in the federal-law sense for controlled-substance purposes.

The remaining tension was between the 1989 prohibition on PA prescribing in § 43-34-26.1(a)(8) and the 1995 affirmative authority in § 43-34-103(e.1). The AG resolved that conflict using the standard rules: the 1995 amendment was the later expression of legislative intent, the 1995 amendment included a broad repealer ("[a]ll laws and parts of laws in conflict with this Act are repealed"), and the principle that the later in time governs (citing Encourage v. Brown and Evans v. Evans) all pointed to § 43-34-103(e.1) controlling.

The AG was careful to emphasize the limits. PA prescriptive authority depended on (a) physician delegation in writing, (b) inclusion of that authority in the job description approved by the Composite State Board, (c) use of a specific prescription drug order form bearing both the supervising physician's information and the PA's signature with the prescribed authorization language, (d) restriction to Schedule III, IV, and V controlled substances (not Schedule I or II), (e) physician monitoring and seven-day countersignature on prescriptions, and (f) the patient's right to see the supervising physician before any prescription was issued by the PA.

For physician's assistants at the time

PAs working under approved job descriptions could write prescriptions for Schedule III, IV, and V controlled substances and could register with the DEA. The job description had to specifically include that authority; an existing job description without prescribing authority did not become a license to prescribe just because the statute allowed it. The PA had to use the special prescription form and follow the supervisory and countersignature rules.

For supervising physicians at the time

The supervising physician took on the obligation to personally monitor patients receiving controlled substances from the PA and to countersign all PA-issued prescriptions within seven days. The physician also remained "responsible for the medical acts" of the PA performing delegated tasks. Physicians had to ensure that the PA's job description, as filed and approved by the Composite State Board, expressly included the prescribing authority being exercised.

For pharmacists at the time

The 1995 statute gave pharmacists a presumption that a prescription order issued on a proper PA form by a duly licensed PA was valid. That presumption protected good-faith dispensing. Pharmacists had to refuse forms with less information than § 43-34-103(e.1)(3) required, and they were entitled to rebut the presumption with actual or constructive knowledge of irregularity.

Common questions

Q: Could a Georgia PA prescribe Schedule II controlled substances?
A: No. The statute (and the AG's reading of it) authorized prescribing only Schedule III, IV, and V controlled substances. Schedule II (and I) substances remained off-limits.

Q: Did this opinion change PA practice immediately?
A: It clarified existing statutory authority rather than expanding it. PAs whose job descriptions already authorized prescribing under § 43-34-103(e.1) could rely on the AG opinion to confirm DEA registration eligibility. PAs whose job descriptions had not yet been amended to include the authority needed a job-description amendment first.

Q: Why did the 1995 statute use "carry out" instead of "prescribe"?
A: Likely to navigate the 1989 prohibition while still enabling the act of prescribing. The AG read the 1995 statutory definition (carrying out means completing a written prescription drug order on a board-approved form), the references to a "prescribing" PA in subsection (e.1)(2), and the limitation in subsection (e.1)(8) ("not permitted to prescribe . . . except as authorized") together as the legislature equating "carrying out" with "prescribing" in the limited PA context.

Q: Could the Composite State Board narrow the range of drugs PAs could prescribe?
A: Yes. Subsection (e.1)(9) directed the Board to adopt rules carrying out § 43-34-103(e.1) and to determine which drugs or devices could be included in a PA's job description. The Board could decline to authorize prescription of specific Schedule III through V drugs.

Background and statutory framework

The PA Act's design has always been delegation-based: the supervising physician is responsible for the PA's medical acts, and the Composite State Board approves the specific scope of practice through job descriptions. After the 1995 amendment and 1999 controlled-substances amendment, the framework recognized PAs as limited prescribers of controlled substances under tight conditions.

The required prescription form (subsection (e.1)(3)) had to include the prescribing supervising physician's name, address, and telephone number; the patient's name and address; the drug or device prescribed; the number of refills; dosage and patient direction; and the PA's signature in the format "This prescription authorized through: (the prescribing supervising physician) (M.D. or D.O.) by (the physician's assistant) PHYSICIAN'S ASSISTANT," with the supervising physician's name handwritten by the PA.

Additional safeguards in subsections (e.1)(4) through (7): the patient had a right to see the physician before a PA prescription was issued; the PA could only carry out the prescription order for a limited period; the supervising physician had to personally monitor patients on controlled substances from the PA; and the supervising physician had to countersign all PA-issued prescriptions within seven days.

Citations and references

Statutes:
- O.C.G.A. § 43-34-101 et seq. (Physician's Assistant Act)
- O.C.G.A. § 43-34-26.1 (1989 ordering authority)
- O.C.G.A. § 43-34-103(e.1) (1995 prescribing authority for Schedule III–V)
- O.C.G.A. § 16-13-21(23)(C) (PA as practitioner under Georgia Controlled Substances Act)
- O.C.G.A. § 1-3-1(a) (statutory construction)

Cases:
- Cardio TVP Surgical Assocs. v. Gillis, 272 Ga. 404 (2000) (Board's exclusive authority over PA scope)
- Encourage v. Brown, 199 Ga. 444 (1945), and Evans v. Evans, 242 Ga. 57 (1978) (later in time governs)
- Freeman v. Ryder Truck Lines, 244 Ga. 80 (1979) (repeals by implication disfavored)

Source

• Landing page: https://law.georgia.gov/opinions/2000-10

Original opinion text

You have asked for my opinion whether physician's assistants are authorized to prescribe controlled substances in Georgia, thereby permitting them to have a Drug Enforcement Administration ("DEA") number. For the reasons outlined below, I believe that the Legislature intended to allow physician's assistants to prescribe Schedule III, IV, and V controlled substances when acting under the proper delegation of a physician, thereby permitting them to have a DEA number. The Physician's Assistant Act ("Act"), contained in Article 4, Chapter 34 of Title 43 of the Official Code of Georgia, provides for the establishment of physician's assistants as a recognized health caregiver in the State of Georgia. First enacted in 1972, the Act was "intended to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to such assistants where such delegation is consistent with the patient's health and welfare." O.C.G.A. § 43-34-101(b). The General Assembly provided that physician's assistants would be authorized to assist the supervisory physician pursuant to a job description, approved by the Composite State Board of Medical Examiners. O.C.G.A. § 43-34-103(a)(3), -104. Recently the Georgia Supreme Court held that the Act "establishes that it is a matter strictly for the Composite State Board of Medical Examiners to determine the nature and scope of the medical tasks for which any [physician's assistant] may be qualified to perform." Cardio TVP Surgical Assocs. v. Gillis, 272 Ga. 404, 405 (2000). Although the original Act gave authority to the Composite State Board of Medical Examiners to determine what tasks were suitable for delegation, there was no language that authorized physician's assistants to engage in the prescribing of drugs in the State of Georgia. In 1989, the General Assembly enacted O.C.G.A. § 43-34-26.1. Subsection (b) of Code section 43-34-26.1 authorizes physicians to delegate to a physician's assistant in accordance with a job description "the authority to order controlled substances selected from a formulary of such drugs established by the Composite State Board of Medical Examiners and the authority to order dangerous drugs, medical treatments, and diagnostic studies." O.C.G.A. § 43-34-26.1(b)(1). Relevant to this section is the definition for "order," which means "to select a drug, medical treatment, or diagnostic study through physician delegation in accordance with a nurse protocol or a physician's assistant's job description." O.C.G.A. § 43-34-26.1(a)(8). However, the General Assembly also directed that "[o]rdering under such delegation shall not be construed to be prescribing, which act can only be performed by the physician, nor shall ordering of a drug be construed to authorize the issuance of a written prescription." O.C.G.A. § 43-34-26.1(a)(8). Therefore, as of 1989, physician's assistants did not have the authority to prescribe drugs even while acting under the supervision of a physician. In 1995, the General Assembly added a new subsection to the Physician's Assistant Act. Paragraph (1) of this new subsection 43-34-103(e.1) reads: In addition to the authority granted by Code Section 43-34-26.1, a physician's assistant shall be allowed to carry out a prescription drug order or orders for any device as defined in Code Section 26-4-5, any dangerous drug as defined in Code Section 16-13-71, or any Schedule III, IV, or V controlled substance as defined in Code Section 16-13-21 on a prescription drug order or prescription device order form as specified in paragraph (3) of this subsection, pursuant to the authority delegated by the supervising physician of that physician's assistant. Delegation of such authority shall be contained in the job description required by this Code section. The delegating physician shall remain responsible for the medical acts of the physician's assistant performing such delegated acts and shall adequately supervise the physician's assistant. If an existing job description for a physician's assistant does not contain such authority to carry out a prescription drug or device order as provided by this subsection, that physician's assistant may not issue any such prescription drug or device order until a new job description delegating such authority is submitted to and approved by the board. Nothing in this Code section shall be construed to authorize the written prescription drug order of a Schedule I or II controlled substance. The definitional section in the amended Physician's Assistants Act, O.C.G.A. § 43-34-102(2), specifies that to carry out a prescription drug or device order "means to complete, on a form established and approved by the board, a written prescription drug order or a prescription device order pursuant to the authority delegated by a supervising physician." Therefore, the relevant question is whether the act of carrying out a prescription drug or device order is equivalent to the act of prescribing a drug or device. There is no affirmative provision in the Code that clearly answers this question. To find an answer, one must scrutinize the statutes further to determine the General Assembly's intent. Two of the paragraphs under subsection 43-34-103(e.1) strongly suggest that the General Assembly meant to allow a physician's assistant to prescribe in a very limited context. Paragraph (2) of Code section 43-34-103(e.1) provides in part: Nothing in this subsection shall be construed to create a presumption of liability, either civil or criminal, on the part of a pharmacist who is duly licensed under Title 26 and who in good faith fills a prescription drug or device order presented by a patient pursuant to this subsection. The pharmacist shall presume that the prescription drug or device order was issued by a physician's assistant duly licensed under this chapter who has qualified under this Code section to prescribe pharmaceutical agents. The pharmacist shall also presume that the pharmaceutical agent prescribed by the physician's assistant is an approved pharmaceutical agent, unless the pharmacist has actual or constructive knowledge to the contrary. (Emphasis added.) The second sentence of this paragraph implicitly reads that a physician's assistant may qualify to prescribe pharmaceutical agents in the context of Code section 43-34-103. Furthermore, a fair reading of the next sentence clearly suggests that the physician's assistant is engaged in the act of prescribing when issuing a prescription drug or device order. Next, paragraph (8) of subsection 43-34-103(e.1) provides that a "physician's assistant is not permitted to prescribe drugs or devices except as authorized in the physician's assistant's job description and in accordance with this chapter." Although this paragraph does not affirmatively allow a physician's assistant to prescribe drugs or devices, the inference is that a physician's assistant may now prescribe drugs or devices, as authorized in his or her job description. In 1999, the General Assembly also added a new subparagraph (C) to paragraph (23) of Code section 16-13-21. This amendment included physician's assistants in the definition of "practitioner" in the Georgia Controlled Substances Act and authorized physician's assistants to register with the federal Drug Enforcement Administration and appropriate state authorities and to allow them to dispense controlled substances, as provided in Code section 43-34-103(e.1). O.C.G.A. § 16-13-21(23)(C). The inclusion of physician's assistants as practitioners for purposes of the Georgia Controlled Substances Act is further indirect support that the General Assembly intended to authorize physician's assistants the power to prescribe in a limited context. The apparent intent of the General Assembly in amending the Physician's Assistants Act in 1995 to add Code section 43-34-103(e.1) was to authorize physician's assistants to prescribe under certain conditions. However, Code section 43-34-26.1(a)(8), enacted in 1989, affirmatively provides that only a physician is allowed to engage in prescribing. It appears that there is an irreconcilable conflict between Code section 43-34-26.1(a)(8) and Code section 43-34-103(e.1) that can only be resolved by turning to the established rules of statutory construction. The cardinal rule in construing statutes is that one tries to ascertain the intent of the General Assembly. O.C.G.A. § 1-3-1(a). In this case, there are two Code sections that are in conflict. The subsequent amendment of Section 43-34-103(e.1) does not specifically repeal the language contained in Code section 43-34-26.1(a)(8). While repeals by implication are generally disfavored, Freeman v. Ryder Truck Lines, 244 Ga. 80 (1979), the 1995 amendment does provide that "[a]ll laws and parts of laws in conflict with this Act are repealed." 1995 Ga. Laws 827, § 3. This language supports the conclusion that Code section 43-34-103(e.1), providing for the ability of physician's assistants to prescribe drugs or devices, controls over Code section 43-34-26.1(a)(8). Moreover, in the event of conflicting provisions, the statute later in time governs as the last expression of the General Assembly's intent. Foster v. Brown, 199 Ga. 444, 451 (1945); Carroll & Co. v. Langford Constr. Co., 182 Ga. App. 258, 260 (1987). "Where there is an irreconcilable conflict between an earlier statute and a subsequent enactment, the subsequent enactment governs. However, repeal by implication takes place only insofar as a statute is clearly repugnant to a former statute." Evans v. Evans, 242 Ga. 57, 58 (1978). In this case, the later statutory enactment of Code section 43-34-103(e.1) supersedes the statutory language in Code section 43-34-26.1(a)(8), as far as it is suggested that only physicians have the authority to engage in the act of prescribing. Although it is my opinion that the General Assembly intended to grant physician's assistants the ability to lawfully prescribe certain pharmaceutical agents, it is very clear that the authority allowing physician's assistants to issue prescriptions is of a restricted nature. The General Assembly has apparently decided to place multiple checks on the prescribing authority of physician's assistants. For example, paragraph (3) of subsection 43-34-103(e.1) provides: The physician's assistant shall only be authorized to exercise the rights granted under this subsection using a prescription drug or device order form which includes the name, address, and telephone number of the prescribing supervising physician, the patient's name and address, the drug or device prescribed, the number of refills, and directions to the patient with regard to the taking and dosage of the drug. Such form shall be signed by the physician's assistant using the following language: This prescription authorized through: (the prescribing supervising physician) (M.D. or D.O.) by (the physician's assistant) PHYSICIAN'S ASSISTANT. The name of the prescribing supervising physician shall be handwritten in the appropriate space by the physician's assistant on the prescription drug or device order form. Any form containing less information than that described in this paragraph shall not be offered to or accepted by any pharmacist who is duly licensed under Title 26. Further controls are contained in paragraphs (4), (5), (6), and (7). A patient always has the right to see a physician prior to the issuance of a prescription by the physician's assistant. O.C.G.A. § 43-34-103(e.1)(4). A physician's assistant may only carry out the prescription order for a limited period. O.C.G.A. § 43-34-103(e.1)(5). The supervising physician is required to personally monitor all patients receiving controlled substances and to countersign all prescriptions issued by a physician's assistant within a period of time not to exceed seven days. O.C.G.A. § 43-34-103(e.1)(6) and (7). The General Assembly also has directed the Composite State Board of Medical Examiners to adopt rules carrying out the provisions of Code section 43-34-103(e.1) and to determine which drugs or devices may be included in a physician's assistant's job description. O.C.G.A. § 43-34-103(e.1)(9). In summary, it is my official opinion that a physician's assistant may prescribe Schedule III, IV, and V controlled substances when acting under the requisite supervision of a physician, thereby permitting them to have a DEA number. However, it is clear that the physician's assistant may only prescribe these controlled substances pursuant to the authority delegated by the supervising physician and that authority must be contained in the physician's assistant's job description. Prepared by: MAXIMILLIAN J. CHANGUS Assistant Attorney General