Could a Kentucky physician assistant dispense prescription medicine from a doctor's office pharmacy?

Plain-English summary

Kentucky's Board of Medical Licensure asked whether a physician assistant working under a physician's supervision could give patients nonscheduled prescription medication from a proposed office pharmacy. In OAG 11-004, the Attorney General said the statute let a physician assistant prescribe and administer delegated drugs, and distribute professional samples, but did not let the assistant dispense prescription medication. Supervision did not supply the missing statutory authority.

The opinion distinguished the acts involved. Prescribing meant issuing the prescription; administering meant applying the drug to a patient. Dispensing, as defined in the statutes the AG quoted, involved delivery with packaging or labeling for later use. The AG also noted that a separate statute expressly let a licensed physician dispense drugs, while no parallel provision covered physician assistants.

Currency note

This opinion was issued in 2011. 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 summary

Physician assistants and supervising doctors

The Board's question concerned an office pharmacy where a physician assistant would hand out nonscheduled prescriptions under a doctor's supervision. The AG concluded that KRS 311.858(4) gave the assistant no authority to dispense them. The opinion expressly preserved the statutory permission to distribute professional sample drugs to patients.

Medical practices

A practice could not treat the assistant's delegated prescribing or administering power as dispensing power under the 2011 statutes. The AG relied on the packaging and labeling elements of dispensing and the contrast with KRS 315.040(2), which expressly protected a licensed physician's dispensing activity.

Common questions

Could a physician assistant hand a patient a filled prescription from an office pharmacy?

The AG said no under KRS 311.858(4) as it stood in 2011. That provision authorized prescribing and administering delegated nonscheduled drugs, but did not authorize dispensing them.

Did physician supervision change the answer?

No. The scenario assumed a supervised assistant, yet the opinion found no dispensing authority in the statute governing the assistant's powers.

Could a physician assistant give a patient drug samples?

Yes. The AG identified the express permission for an assistant with delegated prescribing authority to request, receive, and distribute professional sample drugs to patients. It treated that permission as the limit of the assistant's drug distribution authority under the provision.

Why did the AG distinguish dispensing from administering?

The statutes quoted in the opinion defined administering as direct application to a patient. Their dispensing definitions included delivery in a suitable container and appropriate labeling for later use. Those extra steps meant the words did not describe the same authority.

Background and statutory framework

The 2011 request came from the Kentucky Board of Medical Licensure's executive director. The AG read KRS 311.858(4) alongside statutory definitions of administering and dispensing in KRS 315.010(1), KRS 315.010(8), and KRS 217.015(9). It also compared KRS 315.040(2)'s express language for physicians with the absence of equivalent language for physician assistants. The opinion applied the rule that express mention of sample distribution did not confer a broader distribution power.

Citations and references

• KRS 311.858(4): delegated prescribing and administering authority, plus the express sample-drug permission.
• KRS 315.010(1), KRS 315.010(8), and KRS 217.015(9): definitions used to distinguish administering and dispensing.
• KRS 315.040(2): dispensing language applicable to licensed practicing physicians.
• Palmer v. Com., 3 S.W.3d 763, 764-65 (Ky. App. 1999): cited in the comparison between statutory provisions.
• Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321 (1943): cited for the rule that express mention of one thing excludes another.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_f92c0904-fe02-4f37-a50f-5f87f3875780/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_f92c0904-fe02-4f37-a50f-5f87f3875780

Original opinion text

OAG 11-004
June 10, 2011
Subject:

Authority of physician assistants under KRS
311.858(4)

Requested by:

C. William Schmidt, Executive Director
Kentucky Board of Medical Licensure

Written by:

James M. Herrick
Assistant Attorney General

Syllabus:

Physician assistants do not have authority to dispense or distribute medications under KRS 311.858(4) except for distributing professional sample drugs to patients.

Statutes construed:

KRS 311.858(4), KRS 315.040(2)

Opinion of the Attorney General
The Kentucky Board of Medical Licensure is responsible for licensing and regulating physician assistants under KRS 311.842. C. William Schmidt, Executive Director of the Board, has requested an opinion of this office on the following question: “Under their present statutory authority, may licensed Physician Assistants ‘dispense’ or ‘distribute’ non-scheduled prescription medications to patients they see in their practice?” The factual situation concerns a physician who seeks to establish an in-office pharmacy in which a licensed physician assistant, acting under medical supervision pursuant to KRS 311.854, would dispense or

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distribute non-scheduled prescription medications to patients of the
practice. As we are unaware of any prior decisions or opinions on this
question, the issue is one of first impression.
Physician assistants practice under the supervision of a licensed
physician as set forth in KRS 311.856. The authority of physician assistants to provide medications to patients is set out in KRS 311.858(4): A physician assistant may prescribe and administer all nonscheduled legend drugs and medical devices as delegated by the supervising physician. A physician assistant who is delegated prescribing authority may request, receive, and distribute professional sample drugs to patients. That subsection makes no mention of authority to “dispense” medications, but gives authority to prescribe and administer them. The words of a statute must be given their plain meaning unless to do so would lead to an absurd result. City of Covington v. Kenton County, 149 S.W.3d 358, 362 (Ky. 2004). The question, therefore, is whether the authority to dispense must be regarded as implicit in the authority to “prescribe” and “administer” medications, or whether there exists any reasonable basis upon which the legislature could have intended to withhold dispensing authority from physician assistants. The word “prescribe” is clear in this context as signifying the writing or other issuance of a prescription for a drug or device. “Administer” is defined by KRS 315.010(1) as “the direct application of a drug to a patient or research subject by injection, inhalation, or ingestion, whether topically or by any other means.” The relevant statutory definitions of “dispense” are found in KRS 217.015(9): “Dispense” means to deliver a drug or device to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling or

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compounding necessary to prepare the substance for that
delivery.
and KRS 315.010(8):
“Dispense” means to deliver one (1) or more doses of a
prescription drug in a suitable container, appropriately labeled for subsequent administration to or use by a patient or other individual entitled to receive the prescription drug. Chapter 217 regulates non-scheduled prescription medications, while Chapter 315 governs pharmacists and pharmacies. These definitions establish that “dispensing” incorporates elements that are not included in the scope of prescribing or administering drugs. Specifically, dispensing includes supplying the necessary packaging and labeling to enable the patient to use the medication properly. Accordingly, there is no compelling cause to read dispensing authority into KRS 311.858(4) when it does not appear there explicitly. Furthermore, KRS 315.040(2) contains the following provision applying to physicians only: Nothing in this chapter shall interfere with the professional activities of any licensed practicing physician, or prevent the physician from keeping any drug or medicine that he or she may need in his or her practice, from compounding the physician’s own medications, or from dispensing or supplying to patients any article that seems proper to the physician. (Emphasis added.) There is no parallel provision for physician assistants. In construing the statutes, we must take note of where this language is used by the legislature in contrast to where it is not used. Cf. Palmer v. Com., 3 S.W.3d 763, 764-65 (Ky. App. 1999). Had the General Assembly wished to add physician assistants to the exception made for “licensed practicing physician[s],” it could have done so by

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using the word “practitioner,” which is defined in KRS 315.010(20) and
KRS 217.015(35) as including “physician assistants when administering
or prescribing pharmaceutical agents as authorized in KRS 311.858.”
Since it did not, we conclude that physician assistants have not been
given the statutory authority to “dispense” medications.
As for the question of physician assistants’ authority to “distribute” drugs, neither Chapter 217 nor Chapter 311 of the Kentucky Revised Statutes contains a definition of “distribute.” KRS 218A.010(10), which applies solely to controlled substances but is somewhat analogous, does define this term: “‘Distribute’ means to deliver other than by administering or dispensing a controlled substance.” In any event, the only reference to the authority of a physician assistant to “distribute” medications is the limited reference found in KRS 311.858(4), which states that a physician assistant may “distribute professional sample drugs to patients.” From this explicit language and the principle that expressio unius est exclusio alterius, or the mention of one thing excludes another, Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321 (1943), we conclude that the distribution of professional sample drugs to patients is the full extent of a physician assistant’s authority to “distribute” medications under KRS 311.858(4).

Jack Conway
Attorney General

James M. Herrick
Assistant Attorney General