Could Kentucky pharmacists fill nurse practitioners' prescriptions under the 1993 law?

Plain-English summary

In 1993, Kentucky's Attorney General said pharmacists could not fill prescriptions written by advanced registered nurse practitioners under the statutes then in force. The state drug law's definition of "practitioner" listed five categories of authorized prescribers and did not name advanced registered nurse practitioners. The nursing scope-of-practice provision cited by the AG also did not expressly grant them prescription-writing authority.

The office reasoned that a prescription drug could be dispensed only on an authorized practitioner's order. Its conclusion rested on the 1993 statutory text, not on a finding about a particular nurse's training or the clinical merits of a prescription.

Currency note

This opinion was issued in 1993. 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

Advanced registered nurse practitioners

The AG found no prescription-writing grant in KRS 314.011(8), which described additional acts performed by nurses with added knowledge and skills. It also noted that bills to give nurse practitioners prescribing authority had been introduced but had not passed in the three preceding regular sessions.

Pharmacists and pharmacy regulators

The opinion said Kentucky's pharmacy chapter did not itself identify which prescribers a pharmacist could rely on. The AG instead read the drug-labeling rule in KRS 217.065 together with the authorized-practitioner definition in KRS 217.015(23), then concluded a pharmacist could not fill the nurse practitioner's prescription.

Common questions

Did a nurse practitioner's added nursing skills amount to prescribing authority in 1993?

The AG said no. It found that KRS 314.011(8) did not grant that authority and that nurse practitioners were missing from the drug law's prescriber list.

Why did the pharmacist's authority depend on who wrote the prescription?

The opinion read KRS 217.065 as requiring a prescription from an authorized practitioner for a prescription drug to avoid being misbranded when dispensed. It looked to Kentucky law to identify who counted as an authorized practitioner.

Did the AG say no Kentucky health professional could prescribe drugs?

No. It identified physicians, dentists, podiatrists, veterinarians, and certain optometrists in the statute's practitioner definition. Its negative answer concerned advanced registered nurse practitioners under the 1993 law.

Background and statutory framework

Richard L. Ross of the Kentucky Board of Pharmacy asked whether pharmacists could fill advanced registered nurse practitioners' prescriptions. The AG began with federal prescription-drug law, then examined Kentucky's pharmacy, drug, and professional-licensing provisions. KRS 217.015(23) supplied the prescriber categories; KRS 314.011(8) did not add nurse practitioners to them or give independent prescribing authority. The opinion cited National Nutritional Food Association for federal classification of prescription drugs and Winograd for the state's role in defining practitioners.

Citations and references

• KRS 217.065: labeling provision for prescription drugs discussed by the AG.
• KRS 217.015(23): 1993 practitioner definition quoted in the opinion.
• KRS 314.011(8): nursing scope provision the AG found insufficient to grant prescribing authority.
• National Nutritional Food Association v. Weinberger, 512 F.2d 680 (CA2 1975): federal drug-classification point.
• Winograd v. Johnson, 561 P.2d 1274 (Col. App. 1976): state definition of practitioners.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG93-036.htm

Original opinion text

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