Can a NY hospital resident's or intern's prescription be filled at a regular pharmacy outside the hospital where they work?

Subject

Resident and intern prescriptions may be filled at any licensed pharmacy in New York, reversing a 1950 opinion that limited fills to the hospital pharmacy

Plain-English summary

The Commissioners of Health and Education asked the AG to reconsider a 1950 opinion that had concluded that non-licensed hospital interns could write prescriptions but those prescriptions could only be filled at the hospital pharmacy where the intern practiced. The Commissioners said the 1950 rule was creating real problems: hospital outpatient clinics without pharmacies could not have prescriptions filled by residents or interns; outpatient care had become much more common since 1950; the rule was forcing supervising physicians (rather than residents) to write all outpatient prescriptions, creating cost and administrative burdens.

The AG agreed and rescinded the relevant portion of the 1950 opinion.

The 1950 opinion had reasoned that because non-licensed interns could only practice medicine while serving on a hospital's resident staff (under the predecessor of current Education Law § 6526), their practice was geographically restricted to the hospital, so prescriptions they wrote could only be filled at the hospital pharmacy. The AG noted in 1995 that this reasoning was both textually thin and outdated. Two key points:

First, the statutory text. Education Law § 6526 (the current exemption) lets interns and residents at public hospitals practice without a license, provided their practice is "limited to such hospital" and conducted "under the supervision of a licensed physician." That language limits the practice (the act of treating patients), not the location where a prescription may be filled. The Education Law's pharmacy provisions in § 6810 do not condition the validity of a prescription on the location of the pharmacy; they just require the prescription be written by a person legally authorized to issue it. Nothing connects who can write to where the script can be filled.

Second, the regulatory reality. Today's outpatient clinics, which often lack pharmacies, are part of public hospital operations and properly supervised by licensed physicians. The patient seen in such a clinic by a resident gets the same supervised care as a patient in the hospital itself. Forcing the prescription to be filled only at a hospital pharmacy serves no public-health purpose; it just creates friction. The 1950 rule was a textual stretch built on outdated assumptions about how hospital care is delivered.

The AG's reasoning emphasized the statutory structure. The Education Law has two separate articles, one for medical practice and one for pharmacy practice. The medical-practice article sets who may write prescriptions. The pharmacy article sets who may fill them. Neither article ties the validity of a prescription to the location of the filling pharmacy. Treating those as connected (as the 1950 opinion did) imported a requirement the Legislature had not enacted.

Bottom line: residents and interns at public hospitals may write prescriptions that may be filled at any licensed pharmacy, provided the residents and interns are practicing under the required licensed-physician supervision and the practice is "limited to" the hospital (meaning the prescription is for a patient seen in the hospital or its clinic, not for someone outside the institution). The 1950 opinion's contrary conclusion is no longer good law.

The AG also flagged that hospitals retain discretion to grant or deny prescription-writing privileges to their postgraduate trainees (10 NYCRR 405.4(f)(2)). Practitioners other than physicians (such as nurse practitioners under Education Law § 6902) are also authorized to write prescriptions under separate provisions.

Currency note

This opinion was issued in 1995. 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.

Common questions

What was the 1950 opinion saying?

It said non-licensed interns at hospitals could write prescriptions, including for controlled substances, but those prescriptions could only be filled at the hospital pharmacy where the intern practiced. The reasoning: the intern's practice was "restricted to the hospital," so the prescription's fill location was also restricted to the hospital.

Why was the 1995 reversal necessary?

Practice had outgrown the rule. By 1995, much more medical care was outpatient, and many hospital outpatient clinics lacked pharmacies. Under the 1950 rule, residents at such clinics could not write prescriptions for outpatients, requiring the supervising physician to do all the prescribing. That added cost, created delays, and served no public-health purpose.

What's the actual current limit on resident and intern practice?

Education Law § 6526 limits the practice to the hospital where the resident or intern is employed, under licensed-physician supervision. So a resident can treat a patient in the hospital, in its outpatient clinic, or in any other facility properly considered part of the hospital, but cannot treat patients outside that institutional setting. The supervision requirement is the substantive protection.

What about hospital pharmacy privileges generally?

Hospitals retain discretion under 10 NYCRR 405.4(f)(2) to grant or withhold prescription-writing privileges to postgraduate trainees. So a hospital can decide that certain types of residents (first-year, certain specialties) cannot write certain types of prescriptions even though the law permits the practice generally.

Does this apply to controlled substances?

The opinion does not specifically address controlled substances. Federal DEA registration requirements apply on top of state-law requirements. Many hospitals issue institutional DEA numbers and require interns and residents to operate under those rather than individual DEA registrations. Hospital pharmacy departments handle these protocols.

Statutory framework

Education Law § 6521 defines the practice of medicine: "diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition."

Education Law § 6522 prohibits unlicensed practice of medicine.

Education Law § 6526 exempts from licensing requirements: any physician employed as a resident in a public hospital, with practice limited to the hospital and under licensed-physician supervision; and any intern employed by a hospital who is a graduate of a US or Canadian medical school, with the same limitations.

Education Law § 6801 defines the practice of pharmacy. § 6803 sets licensing requirements. § 6805 prohibits unlicensed pharmacy practice. § 6810 requires that prescriptions be written by a person legally authorized to issue them; it does not restrict where they may be filled.

Education Law § 6902 authorizes nurse practitioners to write prescriptions in specified circumstances.

8 NYCRR 60.7 defines "public hospital" and "resident" for purposes of § 6526. 8 NYCRR Part 63 contains pharmacy regulations. 10 NYCRR 405.4(f)(2) governs hospital discretion over postgraduate trainee privileges.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/95-F7_pw.pdf

Original opinion text

EDUCATION LAW §§ 6501(4), 6521, 6522, 6801, 6803, 6805, 6810, 6902; 8 NYCRR Parts 60, 63, § 60.8; 10 NYCRR 405.4(f)(2).

Prescriptions written by residents and interns in the hospital where they are employed, while they are practicing under the supervision of a licensed physician, may be filled at any licensed pharmacy.

November 21, 1995

Hon. Barbara A. DeBuono
Commissioner
NYS Department of Health
Corning Tower
Empire State Plaza
Albany, NY 12237

Hon. Richard P. Mills
Commissioner
NYS Department of Education
State Education Building
Albany, NY 12234

Formal Opinion
No. 95-F7

Dear Commissioners DeBuono and Mills:

Your counsels have asked us to reconsider a portion of an opinion issued by the Attorney General in 1950 regarding the interpretation of the provisions then contained in Education Law § 6512. In that opinion, the Attorney General concluded that non-licensed hospital interns, who were permitted to practice medicine in a legally incorporated hospital as duly appointed members of the resident staff, could write prescriptions, including prescriptions for controlled substances, but such prescriptions could not be filled anywhere other than at the hospital pharmacy. 1950 Op Atty Gen 164. In reaching this conclusion, the Attorney General stated:

Presumably, the internes [sic] you have in mind are physicians who, although not licensed to practice medicine in this State, are nevertheless permitted to practice medicine in a legally incorporated hospital as duly appointed members of the resident staff, pursuant to Education Law, Section 6512, subd. 1, para. b, which reads in part as follows:

"1. This article shall not be construed to affect or prevent the following:

"b. The practice of medicine in a legally incorporated hospital by a physician duly appointed as member of the resident staff . . ."

It seems to me that inasmuch as such a physician's practice is restricted to the hospital in which he is appointed, he may not issue a prescription for any medication, whether narcotic or non-narcotic, to be filled other than at the pharmacy supply of that hospital. In other words, the activities of such a physician with respect to the treatment of patients, etc., including the writing and filling of prescriptions, may not extend beyond the province of the hospital itself if he is to practice medicine to the extent allowed by the statute.[1]

1950 Op Atty Gen at p 166.

We previously had concluded that, under predecessor provisions of the Public Health Law, an individual who was not licensed to practice medicine could nonetheless practice while actually serving on the resident medical staff of a legally incorporated hospital or as an intern in a State institution. 1925 Op Atty Gen 114. The opinion discussed the history of the exemption, stated that it ought to be narrowly construed, and concluded

this means, in my opinion, that the moment he steps outside the hospital, or even projects his reputation beyond the hospital limits in a manner "tending to imply or designate him as a practitioner of medicine" (sec. 174), he not having registered in accordance with law, his immunity ceases.

1925 Op Atty Gen 117.

The latter opinion did not expressly address the question whether prescriptions written by an intern or resident could be filled at a pharmacy outside the hospital where the intern or resident practices. It also construed a statute that differs somewhat from the current one, as the 1950 opinion did. Accordingly, the prior opinions do not compel the conclusion that, under current law, prescriptions written by a resident or intern must be filled at the hospital where the resident or intern practices.

You state that the limitation imposed by this opinion is having an adverse impact upon the practice of medicine in the State. You note that there have been significant changes in the practice of medicine since 1950 and state that many more hospital patients are treated as outpatients today. Under the provisions of our prior opinion, you assert, all prescriptions for outpatients treated in hospitals that do not have their own pharmacies must be written by supervising physicians rather than by interns or residents. You point out that this results in additional expense and burdens for patients, hospitals and their staffs. We note also that the treatment of patients at hospital clinics, which do not have pharmacies, has become common. Finally, you note that you are aware of no statutory limitation or public policy concern that supports conditioning the validity of a prescription upon the location at which it is filled.

The Education Law contains comprehensive provisions governing the practice of medicine in New York State. Section 6521 states:

The practice of the profession of medicine is defined as diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition.

Licensing requirements are set forth in Education Law § 6524. Applicants must, among other things, fulfill education and experience requirements, pass an examination and be of good moral character. Only a person licensed or otherwise authorized under the Education Law is permitted to practice medicine or use the title "physician". Id., § 6522.

The obvious aim of the licensing requirements is to protect public health by ensuring that only qualified individuals practice medicine. There are specific, limited statutory exemptions to these licensing requirements. Education Law § 6526 provides:

The following persons under the following limitations may practice medicine within the state without a license:

1. Any physician who is employed as a resident in a public hospital, provided such practice is limited to such hospital and is under the supervision of a licensed physician;

. . .

7. Any intern who is employed by a hospital and who is a graduate of a medical school in the United States or Canada, provided such practice is limited to such hospital and is under the supervision of a licensed physician.

Regulations promulgated by the Commissioner of Education provide that "public hospital . . . shall be construed to include a general hospital as defined by Public Health Law, section 2801(10), a psychiatric center operated by the State Office of Mental Health, a developmental center operated by the State Office of Mental Retardation and Developmental Disabilities, an alcohol treatment center operated by the State Office of Alcoholism and Substance Abuse Services, a nursing home, a facility licensed pursuant to article 31 of the Mental Hygiene Law for the care and treatment of persons with mental illness and approved by the State Office of Mental Health, or an incorporated nonprofit home or institution for the care of the chronically ill approved by the State Department of Health.

8 NYCRR 60.7(a).

Those regulations also provide:

The word resident as used in subdivision (1) of section 6526 of the Education Law shall be construed to include interns, employed in a public hospital, who are graduates of medical schools located outside the United States and Canada and who hold the standard certificate of the Educational Council for Foreign Medical Graduates.

8 NYCRR 60.7(b).

Thus, interns and residents who are not licensed may nonetheless practice medicine provided their practice is limited to the hospital where the intern or resident is employed and is carried on under the supervision of a licensed physician. Because the statutory definition of the practice of medicine includes prescribing, an intern or resident is authorized to write prescriptions, but only in the course of a practice that meets the requirements of the statutory exemption.[2]

A separate article of the Education Law governs the profession of pharmacy, which is defined as "the preparing, compounding, preserving or dispensing of drugs, medicines and therapeutic devices on the basis of prescriptions or other legal authority". Id., § 6801. The Education Law establishes licensing requirements and prohibits the unlicensed practice of pharmacy. Id., §§ 6803, 6805. It also provides:

No drug for which a prescription is required by the provisions of the Federal Food, Drug and Cosmetic Act or by the commissioner of health shall be distributed or dispensed to any person except upon a prescription written by a person legally authorized to issue such prescription.

Id., § 6810. See also, 8 NYCRR Part 63.

The statute does not require all prescription writers to be licensed physicians.[3] It simply requires that the writer be authorized to issue the prescription. Nothing in the Education Law governing pharmacy or in implementing regulations controls the location of the pharmacy at which prescriptions may be filled based upon the status of the writer. Neither the statutory definition of the practice of medicine nor the statute providing exemptions from the licensing requirements makes reference to the actual filling of a written prescription or imposes any requirements as to the location at which a prescription may be filled. Accordingly, we conclude that prescriptions written by a resident in a public hospital, while practicing in that hospital under the supervision of a licensed physician, may be filled at any licensed pharmacy. Similarly, prescriptions written by an intern, who is employed by a hospital and who is a graduate of a medical school in the United States or Canada, while practicing under the supervision of a licensed physician in that hospital, may be filled at any licensed pharmacy.

Very truly yours,

DENNIS C. VACCO
Attorney General

[1] When this opinion was written, the definition of the practice of medicine contained in the Education Law was slightly different than the current definition. Education Law § 6501(4) provided: "The practice of medicine is defined as follows: A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition."

[2] We note that the determination regarding what privileges, including prescription writing, will be granted to a postgraduate trainee working in a hospital is within the discretion of that hospital. See, 10 NYCRR 405.4(f)(2).

[3] We note that practitioners other than physicians are authorized to write prescriptions. See, e.g., Education Law § 6902; Op Atty Gen No. 95-F2.