Can a Virginia supervising physician prescribe medication based only on a nurse practitioner's or PA's follow-up visit, without seeing the patient again?

Plain-English summary

Senator Wexton asked a question that affects everyday practice in Virginia medical offices: a patient comes in for an initial visit with a physician, then comes back for a follow-up visit that is seen by a nurse practitioner (NP) or physician assistant (PA) on the same care team. Can the supervising physician prescribe based on the NP's or PA's assessment, without seeing the patient again? And can the physician dispense the medication directly from the office?

AG Herring read the prescribing and dispensing statutes carefully and concluded the practice is generally permissible if the structure is right.

The bona fide practitioner-patient relationship rule. Section 54.1-3303(A) requires that a prescribing physician have a bona fide practitioner-patient relationship with the recipient. That means: (i) an obtained medical or drug history; (ii) information given to the patient about drug benefits and risks; (iii) an appropriate prior examination performed by the prescriber, by someone within the prescriber's practice group, or by a consulting practitioner; and (iv) initiation of additional interventions and follow-up care, especially for drugs with serious side effects. The same requirement applies to NPs and PAs when they write prescriptions under §§ 54.1-2957.01 and 54.1-2952.1.

The "within the group in which he practices" question. The key phrase from § 54.1-3303(A) is that the examination can be performed "within the group in which he practices." That phrase is not defined by statute. Under standard construction rules, undefined terms get their plain and ordinary meaning, guided by context. So the AG looked at the regulatory framework that defines the working relationships between physicians, NPs, and PAs.

Nurse practitioners. A Virginia NP must practice as part of a patient care team and maintain collaboration and consultation with at least one patient-care-team physician through a written or electronic practice agreement (§ 54.1-2957(B)). "Patient care team" is statutorily defined (§ 54.1-2900) as a multidisciplinary team of health care providers actively functioning as a unit. "Collaboration" and "consultation" both involve communication of clinical data, exchange of clinical observations and assessments, and the development of an appropriate plan of care. An NP working on the same patient care team with the supervising physician under a written practice agreement is reasonably "within the group" of the physician.

Physician assistants. A Virginia PA must inform the Board of Medicine of supervising physicians and how the PA will be utilized (§ 54.1-2951.1(B)). The delegated medical tasks must be set forth in a written practice supervision agreement (§ 54.1-2952(A)). The supervising physician retains continuous responsibility for the medical acts of the PA (§ 54.1-2952(B)). If the physician and PA have a written practice supervision agreement, the PA and the physician are "within the same practice group" for these purposes.

So the prescribing answer. If the structure is right (NP on the patient care team with a written practice agreement, or PA under a written practice supervision agreement), the supervising physician can prescribe based on the assessment by the NP or PA during the patient's follow-up visit. The supervising physician still has to satisfy the other elements of a bona fide practitioner-patient relationship: ensuring an updated medical/drug history is obtained from the patient and that the patient has been informed about the prescribed drug's benefits and risks.

Dispensing is separate. Section 54.1-2914(A) generally prohibits a practitioner of the healing arts from selling controlled substances unless licensed by the Board of Pharmacy. The Board of Pharmacy may grant a physician a license to dispense drugs "to whom a pharmaceutical service is not reasonably available" (§ 54.1-3304). A narrow exception for administering controlled substances to patients, providing them in a bona fide medical emergency, or when pharmaceutical services are not available, is preserved by § 54.1-2914(A). For routine office-dispensing of prescriptions written based on an NP or PA visit, the physician needs the separate Board of Pharmacy dispensing license.

Currency note

This opinion was issued in 2015. 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.

Virginia has substantially amended the NP and PA practice statutes since 2015, including expanding NP autonomous practice authority for experienced NPs and adjusting PA supervision requirements. Section 54.1-3303 has also been amended several times. Any practice arrangement today should be reviewed against the current statutes and Board of Medicine and Board of Nursing regulations.

Common questions

What is a "patient care team" in Virginia?
A multidisciplinary team of health care providers actively functioning as a unit for the purpose of providing and delivering health care to a patient or group of patients (Va. Code § 54.1-2900). NPs must practice as part of one. The team-based structure is meant to ensure collaboration, not isolation.

What goes into a written practice agreement (NP) or practice supervision agreement (PA)?
The agreements describe the working relationship, the scope of practice, the supervision and consultation arrangements, and (for PAs) the specific tasks delegated. They are documented in writing and updated as the relationship changes. Each professional licensing board has its own forms and requirements.

Can the NP or PA prescribe independently?
NPs can prescribe certain controlled substances under specified conditions per § 54.1-3408 and other provisions, and (as the statutes have evolved) experienced NPs can practice with greater autonomy. PAs can prescribe under their practice supervision agreements. The opinion focuses on the physician prescribing based on the NP's or PA's recommendation, but independent prescribing by the NP or PA is also possible within the statutory framework.

What if the physician was on vacation and the NP saw a new patient (not a follow-up)?
The opinion specifically addresses follow-up visits where the supervising physician previously saw the patient. For new patients, the bona fide relationship analysis is different: the NP or PA could prescribe on their own under the relevant statutes, or the physician would need to have seen the patient or be consulted by the NP/PA before prescribing.

Why is dispensing treated differently from prescribing?
Prescribing is a medical-judgment act, regulated by the Board of Medicine. Dispensing (putting pills in a bottle and handing them to the patient at the office) is a pharmacy act, regulated by the Board of Pharmacy. The general rule is that pharmacies handle dispensing. The exception for physicians is narrow and tied to areas without reasonable pharmacy access.

What about controlled substances?
The same framework applies, with additional layers: NPs and PAs have specific Schedule limitations under § 54.1-2957.01 and § 54.1-2952.1, and federal DEA registration requirements apply to anyone prescribing controlled substances. The prescribing physician's DEA number is used unless the NP or PA has their own.

Does telehealth change the analysis?
Section 54.1-3303(A) explicitly contemplates exam by "the use of instrumentation and diagnostic equipment through which images and medical records may be transmitted electronically." Telehealth visits can satisfy the prior-examination requirement. Subsequent Virginia legislation has expanded telehealth flexibility significantly.

Background and statutory framework

• Va. Code § 54.1-2900: Definitions, including "patient care team."
• Va. Code § 54.1-2914(A): Prohibition on practitioners selling controlled substances without Board of Pharmacy license.
• Va. Code § 54.1-2951.1(B): Physician assistant registration with Board of Medicine.
• Va. Code § 54.1-2952(A): Written practice supervision agreement requirement for PAs.
• Va. Code § 54.1-2952(B): Continuous supervision; physician responsibility for PA acts.
• Va. Code § 54.1-2952.1: PA prescribing authority.
• Va. Code § 54.1-2957(B): NP practice agreement requirement.
• Va. Code § 54.1-2957(F): Definitions of "collaboration" and "consultation."
• Va. Code § 54.1-2957.01: NP prescribing authority.
• Va. Code § 54.1-3303(A): Bona fide practitioner-patient relationship requirements.
• Va. Code § 54.1-3304: Board of Pharmacy dispensing license for physicians.
• Va. Code § 54.1-3408: Prescribing authority for controlled substances.

The interpretive moves:

• Undefined terms take plain and ordinary meaning in context.
• The NP and PA statutory frameworks create structured working relationships that the legislature would have considered when using "within the group in which he practices."
• An NP on a patient care team with a written practice agreement is within the supervising physician's group.
• A PA under a written practice supervision agreement is within the supervising physician's group.
• The prescribing physician retains responsibility for the bona fide relationship, including updated history and risk/benefit information.
• Dispensing requires a separate Board of Pharmacy license.

Citations

• Va. Code §§ 54.1-2900, 54.1-2914(A), 54.1-2951.1(B), 54.1-2952, 54.1-2952.1, 54.1-2957, 54.1-2957.01, 54.1-3303, 54.1-3304, 54.1-3401, 54.1-3408
• Moyer v. Commonwealth, 33 Va. App. 8 (2000)
• McKeon v. Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970)
• Protestant Episcopal Church v. Truro Church, 280 Va. 6 (2010)
• Sansom v. Bd. of Supvrs., 257 Va. 589 (1999)
• Dep't of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655 (1980)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/14-053_Wexton.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

February 4, 2015

The Honorable Jennifer T. Wexton
Member, Senate of Virginia
20 West Market Street
Leesburg, Virginia 20176

Dear Senator Wexton:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a supervising physician who initially saw a patient may prescribe and dispense medication to the same patient based on the recommendation of a nurse practitioner or physician assistant who saw the patient at a follow-up visit.

Applicable Law and Discussion

You inquire as to the authority of a supervising physician to prescribe medication on the recommendation of a nurse practitioner or physician assistant who has seen his patient during a follow-up visit.[1] Under Virginia law, a physician licensed by the Commonwealth "shall only prescribe, dispense, or administer controlled substances in good faith for medicinal or therapeutic purposes within the course of his professional practice."[2] In addition, a physician may issue a prescription only to a person with whom he has a bona fide practitioner-patient relationship.[3] To establish a bona fide practitioner-patient relationship, the physician must

i) ensure that a medical or drug history is obtained;
ii) provide information to the patient about the benefits and risks of the drug being prescribed;
iii) perform or have performed an appropriate examination of the patient, either physically or by the use of instrumentation and diagnostic equipment through which images and medical records may be transmitted electronically; except for medical emergencies, the examination of the patient shall have been performed by the practitioner himself, within the group in which he practices, or by a consulting practitioner prior to issuing a prescription; and
iv) initiate additional interventions and follow-up care, if necessary, especially if a prescribed drug may have serious side effects.[4]

This requirement for a bona fide practitioner-patient relationship to exist applies when a supervising physician prescribes medication after a patient's follow-up visit with a nurse practitioner or physician assistant.

For a bona fide practitioner-patient relationship to exist, the patient must have been appropriately examined. That examination need not have been conducted by the prescribing physician if it was otherwise performed by a person "within the group in which he practices," or by a consulting practitioner prior to issuance of the prescription.[5] The phrase "within the group he practices" does not have a statutory definition. Generally, when a particular term is not defined in a statute, it must be given its plain and ordinary meaning.[6] The rule that an undefined term must be given its plain and ordinary meaning also requires that courts be "guided by 'the context in which [the word or phrase] is used.'"[7] Thus, to determine whether a nurse practitioner or physician assistant is within the group a supervising physician practices, the role, as defined by statute, each fulfills as a practitioner of healing arts must be considered.

I. Nurse Practitioners

In Virginia, a nurse practitioner is required to practice as part of a patient care team,[8] and must "maintain appropriate collaboration and consultation, as evidenced in a written or electronic practice agreement, with at least one patient care team physician."[9] A "patient care team" is "a multidisciplinary team of health care providers actively functioning as a unit . . . for the purpose of providing and delivering health care to a patient or group of patients."[10] Further, for purposes of these requirements, "collaboration" and "consultation" are defined as follows:

"Collaboration" means the communication and decision-making process among members of a patient care team related to the treatment and care of a patient and includes (i) communication of data and information about the treatment and care of a patient, including exchange of clinical observations and assessments; and (ii) development of an appropriate plan of care, including decisions regarding the health care provided, accessing and assessment of appropriate additional resources or expertise, and arrangement of appropriate referrals, testing, or studies.

"Consultation" means the communicating of data and information, exchanging of clinical observations and assessments, accessing and assessing of additional resources and expertise, problem-solving, and arranging for referrals, testing, or studies.[11]

Accordingly, the governing law, in requiring practice agreements between a supervising physician and a nurse practitioner, contemplates a relationship where the nurse practitioner will assess the patient and recommend treatments. A nurse practitioner working within the same patient care team with the physician thus reasonably should be considered to be working "within the group" of the supervising physician.

II. Physician Assistants

With respect to physician assistants, Virginia law requires that, prior to initiating practice, a physician assistant inform the Board of Medicine who his supervising physicians will be and how he will be utilized.[12] The medical tasks the physician assistant will be authorized to perform on behalf of a supervising physician must be set forth in a written practice supervision agreement.[13] Further, although a supervising physician's physical presence is not required when the assistant is performing his duties, the assistant remains subject to the continuous supervision of the physician,[14] and anyone employing the assistant remains fully responsible for the medical acts of the assistant.[15] Based on the resulting relationship, I conclude that, if the supervising physician and the physician assistant who sees the patient during the follow-up visit have entered into a written practice agreement, then the physician assistant and the physician are within the same practice group.

I therefore conclude that, if the supervising physician has entered into a written practice agreement with a physician assistant, or with a nurse practitioner who is part of the same patient care team, then the physician assistant or nurse practitioner is considered to be within the same group in which the physician practices. The supervising physician can rely on the assessment of the patient by the physician assistant or nurse practitioner who examined the patient at a follow-up visit and thereby have a bona fide practitioner-patient relationship with the patient.[16] The supervising physician may then prescribe medication to the patient based upon the recommendations of the nurse practitioner or the physician assistant.

With regard to the dispensing, rather than mere prescribing, of medication, a physician may not sell or dispense controlled substances unless licensed by the Board of Pharmacy.[17] The Board of Pharmacy may grant to a physician licensed in Virginia, "to whom a pharmaceutical service is not reasonably available," a license to dispense drugs.[18] If the supervising physician has received a license to dispense medications from the Board of Pharmacy, then he may dispense medication that he has prescribed after his patient's follow-up visit with a nurse practitioner or physician assistant within his practice group.

Conclusion

Accordingly, it is my opinion that if a nurse practitioner is part of the supervising physician's patient care team, then the supervising physician may prescribe medication to the patient after the patient was seen by the nurse practitioner, based upon the nurse practitioner's recommendation. Similarly, if a physician assistant has entered into a written practice agreement with the supervising physician that authorizes the physician assistant to assess and recommend treatment for the patient, then the supervising physician may prescribe medication to the patient based upon the physician assistant's recommendation. In either case, the supervising physician must ensure that all the requirements of a bona fide practitioner-patient relationship have been met. The supervising physician may not dispense medication to the patient unless he is licensed by the Board of Pharmacy to dispense drugs.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] I note that Virginia law also authorizes nurse practitioners and physician assistants to prescribe certain controlled substances under specified conditions. See Va. Code Ann. §§ 54.1-2952.1 (2013); 54.1-2957.01 (2013); 54.1-3408 (2013).

[2] Section 54.1-3408(A). Section 54.1-3401 defines the terms "dispense" and "administer." "Dispense" means "to deliver a drug to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing and administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery .... For practitioners of medicine or osteopathy, 'dispense' shall only include the provision of drugs by a practitioner to patients to take with them away from the practitioner's place of practice." "Administer" is defined as "the direct application of a controlled substance, whether by injection, inhalation, ingestion or any other means, to the body of a patient or research subject by (i) a practitioner or by his authorized agent and under his direction or (ii) the patient or research subject at the direction and in the presence of the practitioner."

[3] Section 54.1-3303(A) (2013).

[4] Id. These requirements also apply to nurse practitioners and physician assistants when they issue prescriptions as authorized pursuant to §§ 54.1-2957.01 and 54.1-2952.1.

[5] Section 54.1-3303(A). I note the statute contains an exception for medical emergencies.

[6] See Moyer v. Commonwealth, 33 Va. App. 8, 35 (2000) (citing McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970)).

[7] Protestant Episcopal Church v. Truro Church, 280 Va. 6, 21 (2010) (citing Sansom v. Bd. of Supvrs., 257 Va. 589, 595 (1999) (quoting Dep't of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658 (1980))).

[8] Section 54.1-2957(B) (2013).

[9] Id.

[10] Section 54.1-2900 (Supp. 2014).

[11] Section 54.1-2957(F).

[12] Section 54.1-2951.1(B) (2013).

[13] Section 54.1-2952(A) (2013). Delegable duties include "health care services which are educational, diagnostic, therapeutic, preventive, or include treatment, but shall not include the establishment of a final diagnosis or treatment plan for the patient unless set forth in the written practice supervision agreement." Id.

[14] Id.

[15] Section 54.1-2952(B).

[16] I note, however, that the other elements of a bona fide practitioner-patient relationship also must be satisfied: the supervising physician must ensure, for a follow-up visit with a nurse practitioner or physician assistant, that an updated medical or drug history is obtained from the patient and that the patient has been provided information regarding the benefits and risks of any drug being prescribed. Section 54.1-3303(A).

[17] Section 54.1-2914(A) (2013) provides that "[a] practitioner of the healing arts shall not engage in selling controlled substances unless he is licensed to do so by the Board of Pharmacy." Nevertheless, the prohibition does not apply to a physician "who administers controlled substances to his patients or provides controlled substances to his patient in a bona fide medical emergency or when pharmaceutical services are not available." Id.

[18] Section 54.1-3304 (2013).