IL 18-001 August 21, 2018

Can advanced practice nurses and physician assistants in Illinois dispense the abortion drug mifepristone under a physician's supervision?

Short answer: Yes. The AG concluded in 2018 that recent amendments to the Medical Practice Act, Physician Assistant Practice Act, and Nurse Practice Act did not change the answer reached in 2009 opinion 09-002: a supervising physician can delegate the task of dispensing mifepristone (Mifeprex) to an advanced practice clinician (APRN or PA) acting under the physician's supervision.

Disclaimer: This is an official Illinois Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Illinois attorney for advice on your specific situation.

Subject

Authority of Advanced Practice Clinicians to Dispense Mifepristone

Plain-English summary

Senator Heather Steans asked whether amendments passed since 2009 had quietly changed Illinois law so that advanced practice clinicians (APCs) could no longer help dispense mifepristone, the medication used along with misoprostol to terminate early pregnancies. The Attorney General said no. The amendments in question expanded what APCs (physician assistants and advanced practice registered nurses) could do, including granting some APRNs full practice authority without a written collaborative agreement. Those amendments also added language saying APCs cannot independently perform "those acts to be performed by a physician in section 3.1 of the Illinois Abortion Law." But section 3.1 only restricts who may "perform" an abortion, not the manner. Reading the new language together with the legislative debates, the AG concluded the General Assembly was clarifying that APCs cannot independently provide abortion services, not stripping physicians of the right to delegate parts of an abortion procedure (such as dispensing mifepristone) to an APC working under physician supervision.

Currency note

This opinion was issued in 2018. 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.

In particular, the legal landscape around abortion changed substantially after the U.S. Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, and Illinois has since passed additional legislation addressing reproductive health care. Anyone trying to apply this opinion in practice should confirm the present scope of APC authority under Illinois law and FDA mifepristone REMS requirements.

Background and statutory framework

Mifepristone (brand name Mifeprex, also known as RU-486) is a "legend drug" approved by the FDA in 2000 and updated in 2016. It is dispensed only in qualified health care settings under FDA's Risk Evaluation and Mitigation Strategy (REMS), not at retail pharmacies. The FDA's instructions tell providers to consult their state law to determine who, beyond a physician, may dispense it.

Illinois law on the subject sits in four places:

The Medical Practice Act (225 ILCS 60) authorizes physicians to dispense legend drugs. Subsection 33(a) lets a physician delegate dispensing tasks to others "under the direct supervision of the physician." Section 54.2 says nothing in the Medical Practice Act limits a physician's right to delegate patient care to other licensed people, but no physician may delegate any task that statute or rule mandates be performed by a physician.

The Physician Assistant Practice Act (225 ILCS 95) lets a collaborating physician delegate prescribing and dispensing of over-the-counter, legend, and (with controls) controlled substances to a PA through a written collaborative agreement. Section 7.7 expanded PA authority in hospitals, hospital affiliates, and ambulatory surgical treatment centers.

The Nurse Practice Act (225 ILCS 65) does the same for advanced practice registered nurses (APRNs), which include certified nurse midwives, nurse practitioners, nurse anesthetists, and clinical nurse specialists. Section 65-43, added by Public Act 100-513, gives certain APRNs "full practice authority" without a written collaborative agreement after 250 hours of continuing education and 4,000 hours of clinical experience.

The Illinois Abortion Law of 1975 (720 ILCS 510) defines "abortion" broadly to include the use of any "instrument, medicine, drug or any other substance or device" to terminate a pregnancy. Section 3.1 says only physicians may "perform" abortions but does not restrict the manner of doing so.

Why the AG reached this conclusion

In 2009 opinion 09-002, the AG had already concluded that physicians could delegate dispensing mifepristone to APCs under physician supervision. The 2018 question was whether intervening statutory changes, especially Public Act 100-513 (which expanded APRN practice authority and added language referencing section 3.1 of the Abortion Law), undid that conclusion.

The AG worked through four key delegation provisions:

Section 54.2 of the Medical Practice Act and section 7.5(c) of the Physician Assistant Practice Act both contain general "nothing in this Act shall limit physician delegation" language. Their legislative debates did not mention abortion, mifepristone, or section 3.1. They are not designed to prohibit physician delegation of mifepristone dispensing.
Sections 65-35(e-5) and 65-43(e) of the Nurse Practice Act, by contrast, do reference section 3.1. They say nothing in the Nurse Practice Act authorizes an APRN (or one with full practice authority) to provide health care services that section 3.1 reserves to physicians.

The AG read the section 3.1 references as clarifications, not new restrictions. The legislative history of Public Act 100-513 described the bill as expanding APRN authority. The references make sure that expansion does not extend to APRNs independently providing abortion services. Notably, "independent" is the key word: the language addresses what an APRN can do alone, not what a physician can delegate.

The AG also pointed out that reading section 3.1 to prohibit any APC assistance would force physicians to perform every aspect of patient care during an abortion procedure. That outcome would conflict with the General Assembly's repeated expansion of APC authority and would criminalize conduct expressly authorized by the three professional practice acts.

Common questions

Did this opinion mean that APRNs and PAs can prescribe mifepristone on their own initiative?

No. The opinion was about delegation. A supervising physician retains responsibility, and the APC dispenses or administers mifepristone in the role of an extension of the physician's practice, under either a written collaborative agreement (PA or non-full-practice APRN) or, for full practice APRNs, within the limits the Nurse Practice Act sets for them.

Did anything change about who can perform a surgical abortion?

No. Section 3.1 of the Abortion Law continued to require that abortions be performed by a physician. The opinion only addressed dispensing and administering medication, not surgical procedures. The AG also noted that an APRN's scope of practice excludes operative surgery and limits anesthesia to local anesthetic, which on its own would block APRNs from independently performing surgical abortions.

What is "full practice authority" under section 65-43?

Section 65-43, added by Public Act 100-513 effective January 1, 2018, lets nurse practitioners, nurse midwives, and clinical nurse specialists practice without a written collaborative agreement once they have 250 hours of continuing education and 4,000 hours of clinical experience. They can prescribe legend drugs and (with limits) controlled substances. They cannot perform operative surgery, use general anesthetic, or independently provide section 3.1 abortion services.

Why did the AG bother citing legislative debates?

When the statutory text leaves a doubt, Illinois courts allow consulting the bill's purpose and the recorded debates. The AG showed that lawmakers explicitly described Public Act 100-513 as expanding APRN authority. That made it implausible to read the new section 3.1 references as cutting back on long-standing physician-delegation authority that lawmakers never discussed.

Did the FDA's REMS requirements affect the outcome?

The FDA's program limits mifepristone dispensing to "qualified health care providers" certified under the program, which in turn defers to state law about who may prescribe and dispense. So Illinois law was the dispositive question. The opinion did not address whether a non-physician APC could become a certified prescriber under the federal program.

Citations

225 ILCS 60/1 et seq. (Medical Practice Act of 1987), §§33(a), 54.2, 54.5
225 ILCS 65/50-1 et seq. (Nurse Practice Act), §§50-10, 65-30, 65-35, 65-40, 65-43, 65-45
225 ILCS 95/1 et seq. (Physician Assistant Practice Act of 1987), §§4, 7.5, 7.7
720 ILCS 510/1 et seq. (Illinois Abortion Law of 1975), §§2(4), 3.1
410 ILCS 620/3.23 (Illinois Food, Drug and Cosmetic Act)
Public Act 96-618 (effective January 1, 2010)
Public Act 100-513 (effective January 1, 2018)
Public Act 100-453 (effective August 25, 2017)
Public Act 100-863 (effective August 14, 2018)
Ill. Att'y Gen. Op. No. 09-002, March 5, 2009
68 Ill. Adm. Code §1285.335; §1300.430; §1350.55

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

August 21, 2018

FILE NO. 18-001

LICENSED OCCUPATIONS:
Authority of Advanced Practice
Clinicians to Dispense Mifepristone

The Honorable Heather Steans
Chair, Special Committee on Oversight of Medicaid Managed Care
State Senator, 7th District
5533 North Broadway
Chicago, Illinois 60640

Dear Senator Steans:

I have your letter inquiring whether recent statutory amendments have impacted the authority of advanced practice clinicians (APCs), namely advanced practice registered nurses (APRNs) and physician assistants (PAs), to dispense and administer mifepristone under the supervision of a physician. For the reasons stated below, it is my opinion that the recent statutory amendments do not impact the authority of APCs to dispense and administer mifepristone under the supervision of a physician.

BACKGROUND

Mifepristone, in combination with another medication called misoprostol, is used for the medical termination of an intrauterine pregnancy during early pregnancy. The United States Food and Drug Administration (FDA) first approved of the use of mifepristone in 2000, and then approved a supplemental application submitted in 2016 by the drug company that markets mifepristone. Mifepristone is only available to be dispensed in certain health care settings and is not available in retail pharmacies or legally available over the internet. The FDA requires that mifepristone be provided "by or under the supervision of" a qualified health care provider who is certified to prescribe mifepristone. The FDA has recognized that some states allow health care providers other than physicians to prescribe and dispense medications to patients and has instructed health care providers to check their individual state laws. Thus, whether APCs in Illinois may currently dispense mifepristone turns on the authority that State law grants to APCs.

Authority of Advanced Practice Clinicians under Illinois Law

A number of Illinois statutes set forth the scope of APCs' authority and, specifically, their authority to dispense drugs such as mifepristone. The Medical Practice Act of 1987 (the Medical Practice Act) (225 ILCS 60/1 et seq. (West 2016)) is the clear starting point for a review of the authority to dispense drugs. Subsection 33(a) of the Medical Practice Act (id. §33(a)) authorizes licensed physicians to purchase and dispense legend drugs requiring a prescription in the regular course of practicing medicine. Mifepristone is a legend drug. Subsection 33(a) also provides that "dispensing of such legend drugs shall be the personal act of the person licensed under this Act and may not be delegated to any other person not licensed under this Act or the Pharmacy Practice Act unless such delegated dispensing functions are under the direct supervision of the physician[.]"

Section 54.2 of the Medical Practice Act (225 ILCS 60/54.2 (West 2017 Supp.)) addresses physician delegation of patient care tasks or duties to licensed persons practicing within their respective scopes of practice and to unlicensed persons with appropriate training and education under specified circumstances. Specifically, subsection 54.2(a) of the Act (id. §54.2(a)) provides that nothing in that Act shall be construed to limit physician delegation of patient care tasks or duties to other licensed persons, including a licensed practical nurse or a registered professional nurse practicing within the scope of his or her individual licensing Act. Methods of delegation may include oral, written, electronic, standing orders, protocols, guidelines, or verbal orders. Id. §54.2(f). Subsection 54.2(a) also provides that no physician may delegate any patient care task or duty that is statutorily or by rule mandated to be performed by a physician.

Delegation by a physician to a PA or an APRN is also addressed in section 54.5 of the Medical Practice Act (225 ILCS 60/54.5 (West 2017 Supp.), as amended by Public Act 100-863, effective August 14, 2018). Under section 54.5, licensed Illinois physicians may delegate care and treatment responsibilities to a PA through guidelines that are in accord with the Physician Assistant Practice Act of 1987 (the Physician Assistant Practice Act) (225 ILCS 95/1 et seq. (West 2016)), and licensed Illinois physicians in active clinical practice may collaborate with an APRN in accordance with the requirements of the Nurse Practice Act (225 ILCS 65/50-1 et seq. (West 2016)).

Physician Assistants

The Physician Assistant Practice Act authorizes a licensed PA to perform procedures within the specialty of the collaborating physician and with the collaborating physician exercising the direction and control over the PA necessary to assure that patients receive quality medical care. 225 ILCS 95/4 (West 2017 Supp.). A collaborating physician may delegate tasks or duties to a PA that are: (1) consistent with the PA's education, training, and experience; (2) specific to the practice setting; and (3) implemented and reviewed under a written collaborative agreement established by the physician or physician/physician assistant team. Id. §4. Under the Physician Assistant Practice Act, the collaborating physician need not be on-site with the PA, as long as the physician and PA can communicate by telephone or electronic communications. Id. §4. Based on these provisions, PAs practice in accordance with a written collaborative agreement which describes the working relationship of the PA with the collaborating physician and the categories of care, treatment, or procedures to be provided by the PA. Id. §4, 7.5.

Subsection 7.5(b) of the Physician Assistant Practice Act (id. §7.5(b)) authorizes a collaborating physician to delegate prescriptive authority to a PA as part of a written collaborative agreement. Pursuant to this authority, the written collaborative agreement may include prescription of and dispensing of over the counter medications, legend drugs, and certain controlled substances. See also 225 ILCS 60/54.5(g) (West 2017 Supp.), as amended by Public Act 100-863, effective August 14, 2018. Subsection 7.5(c) of the Physician Assistant Practice Act (225 ILCS 95/7.5(c) (West 2017 Supp.)) provides that nothing in this Act shall be construed to limit the delegation of tasks or duties by a physician to other persons, including a licensed practical nurse or a registered professional nurse. Subsection 7.5(c) also states that nothing in this Act shall be construed to authorize a PA to provide health care services required by law or rule to be performed by a physician.

Section 7.7 of the Physician Assistant Practice Act (id. §7.7) provides greater authority to PAs who practice in hospitals, hospital affiliates, or ambulatory surgical treatment centers. Under this section, PAs in these settings who are granted clinical privileges may provide services without a written collaborative agreement and, when recommended by medical staff, may be granted authority to select, order, and administer medications, including controlled substances. See id. §7.7.

Advanced Practice Registered Nurses

The Nurse Practice Act provides for licensure of nurses in three categories: licensed practical nurses, registered professional nurses, and advanced practice registered nurses. See generally 225 ILCS 65/50-10 (West 2017 Supp.). An APRN is a registered professional nurse who has met the qualifications for and is licensed as: a certified nurse midwife; a certified nurse practitioner; a certified nurse anesthetist; or a clinical nurse specialist. Id. §50-10, 65-30. Physicians may collaborate with APRNs to provide services in the same practice or specialty as the collaborating physician provides in his or her clinical medical practice. 225 ILCS 65/65-35 (West 2017 Supp.); see also 225 ILCS 60/54.5(b) (West 2017 Supp.), as amended by Public Act 100-863, effective August 14, 2018.

Under the Nurse Practice Act, APRNs engaged in clinical practice in collaboration with a physician must have a written collaborative agreement describing the relationship of the APRN and the collaborating physician and the categories of care, treatment, or procedures to be provided by the APRN. 225 ILCS 65/65-35, 65-40 (West 2017 Supp.); see also 225 ILCS 60/54.5(b) (West 2017 Supp.). The law does not require the collaborating physician to be personally present at the place where services are rendered by an APRN, as long as the collaborating physician and the APRN are able to communicate, such as by telephone or by electronic communications, as set forth in the written agreement. 225 ILCS 65/65-35(b) (West 2017 Supp.).

An APRN's scope of practice expressly includes, among other things, "[p]rescriptive authority[.]" 225 ILCS 65/65-30(c)(6) (West 2017 Supp.). A collaborating physician may, but is not required to, delegate prescriptive authority to an APRN pursuant to a written collaborative agreement. Id. §65-40(a); see also 225 ILCS 60/54.5(f) (West 2017 Supp.), as amended by Public Act 100-863, effective August 14, 2018. Prescriptive authority may include prescription of and dispensing of over the counter medications, legend drugs, and controlled substances. 225 ILCS 65/65-40(a) (West 2017 Supp.). Subsection 65-35(e) of the Nurse Practice Act (225 ILCS 65/65-35(e) (West 2017 Supp.)) provides that nothing in this Act shall be construed to limit the delegation of tasks or duties by a physician to other persons, including a licensed practical nurse or a registered professional nurse. Subsection 65-35(e-5) of the Nurse Practice Act (id. §65-35(e-5)) further provides that nothing in this Act shall be construed to authorize an APRN to provide health care services required by law or rule to be performed by a physician, including those acts to be performed by a physician in section 3.1 of the Illinois Abortion Law of 1975 (the Abortion Law) (720 ILCS 510/3.1 (West 2016)).

Like the Physician Assistant Practice Act, the Nurse Practice Act permits APRNs who practice in hospitals, hospital affiliates, or ambulatory surgical treatment centers to be granted broader authority. In those settings, an APRN who is granted clinical privileges may provide services without a written collaborative agreement, and may also be granted the authority to select, order, and administer medications, including controlled substances, to provide certain types of care. 225 ILCS 65/65-35, 65-45 (West 2017 Supp.).

Additionally, section 65-43 of the Nurse Practice Act (225 ILCS 65/65-43 (West 2017 Supp.)) grants full practice authority without a written collaborative agreement to any Illinois-licensed APRN certified as a nurse practitioner, nurse midwife, or clinical nurse specialist who completes (1) at least 250 hours of continuing education or training, and (2) at least 4,000 hours of clinical experience. Section 65-43 of the Nurse Practice Act provides that the scope of practice of an APRN with full practice authority includes the authority to prescribe both legend drugs and, subject to certain limitations, controlled substances. There are limits to the scope of practice of an APRN with full practice authority, however. For example, the scope of practice includes use of only local anesthetic and expressly excludes operative surgery. Additionally, subsection 65-43(e) of the Nurse Practice Act (225 ILCS 65/65-43(e) (West 2017 Supp.)) provides that nothing in the Nurse Practice Act shall be construed to authorize an APRN with full practice authority to provide health care services required by law or rule to be performed by a physician, including but not limited to, those acts to be performed by a physician in section 3.1 of the Abortion Law.

Illinois Abortion Law of 1975

Subsection 2(4) of the Abortion Law (720 ILCS 510/2(4) (West 2016)) currently defines the term "abortion" as:

the use of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus. (Emphasis added.)

The use of mifepristone, a "medicine" or "drug," to terminate a pregnancy falls within the definition of "abortion" contained in subsection 2(4).

Section 3.1 of the Abortion Law specifies that only physicians may perform abortions but places no limits on the manner in which they do so. This section provides, in pertinent part:

No abortion shall be performed except by a physician after either (a) he determines that, in his best clinical judgment, the abortion is necessary, or (b) he receives a written statement or oral communication by another physician, hereinafter called the "referring physician", certifying that in the referring physician's best clinical judgment the abortion is necessary.

Opinion No. 09-002

In opinion No. 09-002, issued March 5, 2009, you inquired whether the provisions of the Abortion Law (720 ILCS 510/1 et seq. (West 2006)) in effect at that time authorized APCs to dispense mifepristone. It was my opinion that, by placing no express limits on the manner in which physicians perform abortions, section 3.1 of the Abortion Law allows physicians to act in a manner consistent with their medical practices. Because the practice of medicine is guided by the provisions of the Medical Practice Act, the Physician Assistant Practice Act, and the Nurse Practice Act, all of which allowed physicians to delegate authority to APCs, I concluded that a physician may delegate the task of dispensing mifepristone to an APC acting under the physician's supervision.

The pertinent provisions of the Abortion Law have not been amended since the issuance of opinion No. 09-002. However, the General Assembly has amended the three licensing statutes which opinion No. 09-002 considered.

Statutory Amendments Subsequent to the Issuance of Opinion No. 09-002

The recent amendments to the Medical Practice Act, Physician Assistant Practice Act, and Nurse Practice Act have expanded the practice of Illinois APCs. A number of the provisions of these statutes described above are the result of the recent amendments. Among other things, the General Assembly has clarified the extent of physician delegation of prescriptive authority to APCs for controlled substances and has expanded the authority of Illinois APCs to obtain clinical privileges to practice in a hospital, hospital affiliate, or ambulatory surgical treatment center without a written collaborative agreement or written supervision agreement. The General Assembly has also granted full practice authority without a written collaborative agreement to any Illinois-licensed APRN certified as a nurse practitioner, nurse midwife, or clinical nurse specialist after completing at least 250 hours of continuing education or training and at least 4,000 hours of clinical experience after first attaining national certification. See 225 ILCS 65/65-43 (West 2017 Supp.).

As the General Assembly has expanded the practice of APCs, it has also amended the statutory provisions pertaining to physician delegation of tasks or services related to APCs. Specifically, four statutory provisions contain language that address physician delegation of patient care tasks or services: (1) section 54.2 of the Medical Practice Act; (2) subsection 7.5(c) of the Physician Assistant Practice Act; (3) section 65-35 of the Nurse Practice Act (225 ILCS 65/65-35 (West 2017 Supp.)); and (4) section 65-43 of the Nurse Practice Act. We must consider the language of these four sections in determining the extent of the APCs' authority under current Illinois law.

ANALYSIS

The primary objective of statutory construction is to ascertain and give effect to the intent of the General Assembly. Valfer v. Evanston Northwestern Healthcare, 2016 IL 119220, ¶22, 52 N.E.3d 319, 326 (2016). Legislative intent is best evidenced by the language used in the statute. Illinois State Treasurer v. Illinois Workers' Compensation Comm'n, 2015 IL 117418, ¶21, 30 N.E.3d 288, 294 (2015). When the meaning of a statute is not clear from the statutory language itself, it is proper to consider the purpose of the enactment and the legislative history of the statute. Home Star Bank & Financial Services v. Emergency Care & Health Organization, Ltd., 2014 IL 115526, ¶24, 6 N.E.3d 108, 135 (2014). Moreover, where an amendment is at issue, it is necessary to compare the statutory language before and after the change, and then weigh the entire statute in light of these considerations. In re Marriage of Logston, 103 Ill. 2d 266, 279, 469 N.E.2d 167, 172 (1984).

Subsection 54.2(a) of the Medical Practice Act expressly addresses a physician's delegation of his or her authority to APCs and provides:

(a) Nothing in this Act shall be construed to limit the delegation of patient care tasks or duties by a physician, to a licensed practical nurse, a registered professional nurse, or other licensed person practicing within the scope of his or her individual licensing Act. Delegation by a physician licensed to practice medicine in all its branches to physician assistants or advanced practice registered nurses is also addressed in Section 54.5 of this Act. No physician may delegate any patient care task or duty that is statutorily or by rule mandated to be performed by a physician. (Emphasis added.)

The plain language of subsection 54.2(a) does not address the delegation of the task of dispensing mifepristone (or any other drug) to an APC acting under the supervision of a physician. Because the statutory language does not address the dispensing of mifepristone by an APC, it is appropriate to consider the legislative history of the statute.

The language in subsection 54.2(a) was added by Senate Bill 318, which was enacted as Public Act 96-618, effective January 1, 2010. During the legislative debates on Senate Bill 318 there was no mention of the Abortion Law or whether a physician may delegate the act of dispensing mifepristone under physician supervision. Instead, the discussion during the debates focused primarily on concerns that chiropractors would delegate services typically provided by massage therapists to unlicensed personnel. See Remarks of Rep. Saviano, Rep. Coulson, and Rep. Brauer, May 19, 2009, House Debate on Senate Bill No. 318, at 116-122. Thus, nothing in the language of subsection 54.2(a) itself, the legislative history behind its enactment, or the administrative rules adopted in furtherance of the Act (68 Ill. Adm. Code §1285.335 (2018), last amended at 29 Ill. Reg. 18823, effective November 4, 2005), evinces a legislative intent to prohibit a physician from delegating the task of dispensing mifepristone to an APC acting under a physician's supervision.

Similarly, the Physician Assistant Practice Act, which authorizes a physician to delegate prescriptive authority to a PA pursuant to a written collaborative agreement, was amended by Public Act 100-453, effective August 25, 2017, providing in subsection 7.5(c):

(c) Nothing in this Act shall be construed to limit the delegation of tasks or duties by a physician to a licensed practical nurse, a registered professional nurse, or other persons. Nothing in this Act shall be construed to limit the method of delegation that may be authorized by any means, including, but not limited to, oral, written, electronic, standing orders, protocols, guidelines, or verbal orders. Nothing in this Act shall be construed to authorize a physician assistant to provide health care services required by law or rule to be performed by a physician. (Emphasis added.)

Like the language in the Medical Practice Act, nothing in the plain language of subsection 7.5(c) expressly addresses a physician delegating the task of dispensing mifepristone to a PA acting under the physician's supervision. Further, during legislative debate on Senate Bill 1585, which became Public Act 100-453, there was no discussion regarding whether a physician may delegate the act of dispensing mifepristone under physician supervision. See Remarks of Rep. Soto, May 30, 2017, House Debate on Senate Bill No. 1585, at 29; Remarks of Sen. Martinez, April 27, 2017, Senate Debate on Senate Bill No. 1585, at 31-34. Rather, the House sponsor described the bill as a modernization and ten-year extension of the Physician Assistant Practice Act and as a bill intended "to increase patient access to medical care for Medicaid patients, rural Illinoisans, and the underserved areas." See Remarks of Rep. Soto, May 30, 2017, House Debate on Senate Bill No. 1585, at 29. Thus, neither the language of subsection 7.5(c) of the Physician Assistant Practice Act, the legislative history behind its enactment, nor the administrative rules adopted under the Act (68 Ill. Adm. Code §1350.55 (2018), last amended at 33 Ill. Reg. 1484, effective January 8, 2009), evinces a legislative intent to prohibit a physician from delegating the task of dispensing mifepristone to a PA acting under a physician's supervision.

Sections 65-35 and 65-43 of the Nurse Practice Act, which address, among other things, the requirements for written collaborative agreements with APRNs, respectively provide:

(e-5) Nothing in this Act shall be construed to authorize an advanced practice registered nurse to provide health care services required by law or rule to be performed by a physician, including those acts to be performed by a physician in Section 3.1 of the Illinois Abortion Law of 1975. 225 ILCS 65/65-35(e-5) (West 2017 Supp.).

(e) Nothing in this Act shall be construed to authorize an advanced practice registered nurse with full practice authority to provide health care services required by law or rule to be performed by a physician, including, but not limited to, those acts to be performed by a physician in Section 3.1 of the Illinois Abortion Law of 1975. 225 ILCS 65/65-43(e) (West 2017 Supp.).

In contrast to the provisions of the Medical Practice Act and the Physician Assistant Practice Act, these sections of the Nurse Practice Act contain specific references to the Abortion Law. As noted above, section 3.1 of the Abortion Law specifies that only physicians may perform abortions but places no limits on the manner in which they may do so. It is unclear whether the amendment adding these references to the Abortion Law was meant to change the law and limit the actions APRNs may take with regard to abortion or simply to codify the law as it existed. Thus, it is appropriate to review the legislative history of the amendment.

During legislative debate on House Bill 313, which was enacted as Public Act 100-513 and amended both sections 65-35 and 65-43 of the Nurse Practice Act, the House sponsor described the bill as expanding the Nurse Practice Act to give APRNs the authority to practice independently. See Remarks of Rep. Feigenholtz, June 25, 2017, House Debate on House Bill No. 313, at 1-2. Likewise, the Senate sponsor indicated that the bill grants APRNs full practice authority status without a written collaborative agreement upon meeting the specific requirements. Remarks of Sen. Martinez, May 29, 2017, Senate Debate on House Bill No. 313 (Senate Audio Floor Debate CD).

The legislative history thus makes it clear that the amendment was intended to expand APRN authority. When viewed in this context, the references to section 3.1 are properly construed as clarifying that the expansion of APRN practice authority is not intended to go so far as to allow APRNs to independently provide abortion services. Notably, the scope of practice for APRNs with full practice authority includes the authority to prescribe drugs (subject to specific limitations not applicable here) and allows the use of a local anesthetic, but does not include operative surgery. 225 ILCS 65/65-43(c) (West 2017 Supp.). The scope of practice provisions limiting the use of anesthesia and prohibiting operative surgery, standing alone, can be interpreted to place certain surgical abortion services outside the scope of an APRN with full practice authority, even without a specific reference to the Abortion Law. Without the specific references to section 3.1, however, the provisions expanding APRN authority could be interpreted to allow APRNs to independently prescribe drugs that terminate a pregnancy without physician supervision. It is thus my opinion that the provisions in the Nurse Practice Act referencing section 3.1 of the Abortion Law clarify that APRNs with greater practice authority may not independently provide abortion services. Nothing in the language of these provisions or in their legislative history suggests, however, the intent to prohibit physicians from appropriately delegating the task of dispensing mifepristone to APRNs acting under the physician's supervision. See 68 Ill. Adm. Code §1300.430 (2018), last amended at 39 Ill. Reg. 15764, effective November 24, 2015.

As discussed in opinion No. 09-002, several Illinois statutes, all enacted after the Abortion Law, expressly authorize physicians to delegate certain medical care (including prescribing and dispensing medication) to APRNs and PAs. Nothing in the Abortion Law restricts the ability of physicians to perform abortions in a manner that is consistent with the practice of medicine. As a result, the Abortion Law does not prohibit physicians from undertaking this medical care with the assistance of APCs as allowed under Illinois law. Interpreting section 3.1 of the Abortion Law to prohibit APC assistance would lead to the illogical conclusion that a physician must perform every aspect of patient care, a result clearly irreconcilable with the General Assembly's repeated expansion of APC authority in Illinois, and would criminalize conduct that is otherwise expressly permitted under the Medical Practice Act, the Physician Assistant Practice Act, and the Nurse Practice Act. The General Assembly's recent enactment of language which significantly expands the practice authority of APRNs, but also clarifies that they may not independently provide abortion services, does not prohibit a physician from delegating the task of dispensing and administering mifepristone to an APC acting under the physician's supervision.

CONCLUSION

Recent statutory amendments to the Medical Practice Act of 1987, the Physician Assistant Practice Act of 1987, and the Nurse Practice Act, do not prohibit a physician from delegating the tasks of dispensing and administering mifepristone and other drugs to an advanced practice clinician acting under the physician's supervision. Consequently, it is my opinion that advanced practice clinicians may continue to dispense and administer mifepristone under the supervision of a physician.

Very truly yours,

LISA MADIGAN
ATTORNEY GENERAL