AGO 1983 No. 12 - Jun 20 1983
OFFICES AND OFFICERS ‑- STATE ‑- BOARD OF PHARMACY ‑- DRUGS ‑- DRUGGISTS ‑- PHARMACISTS ‑- CONTROLLED SUBSTANCES ‑- REGULATION OF THE DISPENSING OF LENGEND DRUG AND CONTROLLED SUBSTANCES
(1) Although RCW 18.64.020 prohibits the practice of pharmacy by persons other than licensed pharmacists, it is nevertheless lawful for certain practitioners other than licensed pharmacists (generally those who are authorized to prescribe such drugs) also to dispense both legend drugs and controlled substances.
(2) The State Board of Pharmacy is authorized by statute to promulgate rules governing the dispensing of drugs by those other persons, as well as by licensed pharmacists.
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June 20, 1983
Honorable Lars Hennum, Chairman
Board of Pharmacy
319 E. 7th Avenue
Olympia, WA. 98504
Cite as: AGO 1983 No. 12
By letter previously acknowledged you asked for our opinion on two questions which we paraphrase as follows:
(1) In view of the prohibition contained in RCW 18.64.020 against the practice of pharmacy by other than licensed pharmacists, and the definition of the "practice of pharmacy" in RCW 18.64.010(11), is it nevertheless lawful for any person other than a licensed pharmacist (or a pharmacy intern registered under RCW 18.64.080) to "dispense" drugs? (2) In the event that the foregoing question is answered in the affirmative, so that the dispensing of drugs by certain persons other than those licensed by or registered with the State Board of Pharmacy is permitted, does the board have the authority to promulgate rules for the dispensing of drugs by those other persons?
We answer both questions in the affirmative for the reasons set forth in our analysis.
[[Orig. Op. Page 2]]
RCW 18.64.011(15), a part of the act regulating the practice of pharmacy, provides:
"'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, and includes the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery."
Two other statutes, RCW 69.41.010(3)1/ and 69.50.101(g),2/ also contain definitions of the term "dispense." Those two statutes are virtually identical to RCW 18.64.011(15),supra, except that the latter refers to the dispensing of any drug while RCW 69.41.010(3) applies only to the dispensing of legend, or prescription, drugs and RCW 69.50.101(g) applies only to the dispensing of controlled substances.
In connection with your first question you note that the practice of pharmacy, as defined in RCW 18.64.011(11), includes the practice of, and responsibility for, the dispensing, labeling, administering, and distributing of drugs. And, under RCW 18.64.020, it is unlawful to practice pharmacy unless licensed to do so by the Board of Pharmacy. Thus, unless some other statute authorizes others also to dispense drugs, it would seem readily to follow that only licensed pharmacists could lawfully do so. Yet we also note the following disclaimer in RCW 18.64.255(1) which reads:
"Nothing in this chapter shall operate in any manner:
"(1) To restrict the scope of authorized practice of any practitioner other than a pharmacist, duly licensed as such under the laws of this state; . . ."
[[Orig. Op. Page 3]]
"Practitioner," in turn, is defined in RCW 18.64.011(9) to mean
". . . a physician, dentist, veterinarian, nurse, or other person dulyauthorized by law or rule in the state of Washington to prescribe drugs." (Emphasis supplied)
Those persons who may lawfully prescribe legend drugs are listed in RCW 69.41.030 which reads:
"It shall be unlawful for any person to sell, deliver, or possess any legend drug except upon the order or prescription of a physician under chapter 18.71 RCW, an osteopathic physician or an osteopathic physician and surgeon under chapter 18.57 RCW,a dentist under chapter 18.32 RCW, a podiatrist under chapter 18.22 RCW, a veterinarian under chapter 18.92 RCW, a commissioned medical or dental officer in the United States armed forces, marine hospital service, or public health service in the discharge of his official duties, a duly licensed physician or dentist employed by the veterans administration in the discharge of his official duties, a registered nurse under chapter 18.88 RCW when authorized by the board of nursing,an osteopathic physician's assistant under chapter 18.57A RCW when authorized by the committee of osteopathic examiners,a physician's assistant under chapter 18.71A RCW when authorized by the board of medical examiners, or a physician licensed to practice medicine and surgery or a physician licensed to practice osteopathy and surgery in any state or province of Canada which shares a common border with the state of Washington:" (Emphasis supplied)
In turn, the extent of the authority to prescribe legend drugs of those persons licensed or registered by the state of Washington is set forth in the laws or rules governing each profession; for physicians see RCW 18.71.011(2); osteopaths RCW 18.57.020 and 18.57.170(9); dentists RCW 18.32.320; podiatrists RCW 18.22.185; veterinarians RCW 18.92.010; osteopathic physicians' assistants RCW 18.57A.030-18.57A.040, WAC 308-138-025; physicians' assistants RCW 18.71A.030-18.71A.040, WAC 308-52-135; and registered nurses WAC 308-120-400 through 308.120.450.
In answering your first question, then, it is thus necessary to determine whether a person who is so duly authorized to [[Orig. Op. Page 4]] prescribe such legend drugs is likewise authorized to dispense those drugs. With that in mind we next note the following language of RCW 69.41.050:
"To every box, bottle, jar, tube or other container of a legend drug, which is dispensed by a practitioner authorized to prescribe legend drugs, there shall be affixed a label bearing the name of the prescriber, complete directions for use, the name of the drug either by the brand or generic name and strength per unit dose, name of patient and date: . . ." (Emphasis supplied)
This statute, as we read it, implicitly says that those persons who may prescribe legend drugs (i.e., those persons listed in RCW 69.41.030,supra) may also dispense those drugs. We further note, however, that in the case of registered nurses, physicians' assistants and osteopathic physicians' assistants, the authority to dispense has been restricted by the boards which regulate those professions. See WAC 308-120-270, 308-120-400, 308-52-135 and 308-138-135.
Thus, in the case of legend drugs at least, persons other than licensed pharmacists may lawfully dispense.3/
(b) Controlled substances:
In the case of controlled substances the Uniform Controlled Substances Act provides that "practitioners," if otherwise authorized, may dispense controlled substances if they are registered to do so by the Board of Pharmacy or if they are exempt from registration. RCW 69.50.303(c). "Practitioners," under the Uniform Controlled Substances Act, are defined by RCW 69.50.101(t) as follows:
". . .
"(1) A physician under chapter 18.71 RCW, an osteopathic physician or an osteopathic physician and surgeon under chapter 18.57 RCW, a dentist under chapter 18.32 RCW, a [[Orig. Op. Page 5]] chiropodist under chapter 18.22 RCW, a veterinarian under chapter 18.92 RCW, a registered nurse under chapter 18.88 RCW, a licensed practical nurse under chapter 18.78 RCW, a pharmacist under chapter 18.64 RCW or a scientific investigator under this chapter, licensed, registered or otherwise permitted insofar as is consistent with those licensing laws to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of their professional practice or research in this state.
"(2) A pharmacy, hospital or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state.
"(3) A physician licensed to practice medicine and surgery or a physician licensed to practice osteopathy and surgery in any state which shares a common border with the state of Washington."
Those practitioners who are otherwise authorized to dispense controlled substances by virtue of their authority to prescribe such drugs4/ are: physicians by RCW 18.71.011(2); osteopaths by RCW 18.57.020 and 18.57.170(9); dentists by RCW 18.32.320; chiropodists (podiatrists) by RCW 18.22.185; and veterinarians by RCW 18.92.010. In addition, as also noted above, registered nurses can dispense, but only to the extent authorized by WAC 308-120-270 and 308-120-400.
It will also be seen that the Controlled Substances Act, in contrast, to the Legend Drug Act,supra, does not include physicians' assistants or osteopathic physicians' assistants within the definition of practitioner. The absence of express references to those persons, however, does not in our opinion preclude either class of assistants from dispensing controlled substances consistent with the approval and authority granted by the appropriate board. Accord, RCW 18.57A.040 and 18.71A.040, WAC 308-52-135 and 308-138-135. InNurses Association v. Board of [[Orig. Op. Page 6]] Medical Examiners, 93 Wn.2d 117, 605 P.2d 1269 (1980), our State Supreme Court held that physicians' assistants are agents for their supervising physicians, rather than independent practitioners. Thus, any dispensing by a physician's assistant, within his or her authority to do so, is, as a matter of law, to be deemed dispensing by the supervising physician.5/
By the same token‑-although Nurses Association, supra, dealt only with the statutorily created agency relationship between a physician's assistant and a supervising physician‑-we believe that because of the similarity of the statutes the reasoning in that decision is equally applicable to the relationship between an osteopathic physician's assistant and an osteopathic physician.
For these reasons, then, and subject to the limitations noted above, it is our opinion that certain persons6/ other than licensed pharmacists may dispense both controlled substances and legend drugs. We therefore answer you first question in the affirmative.
With that conclusion in mind we turn, next, to your second question by which you asked whether, in the event of such an answer to question (1), the Board of Pharmacy has the authority to promulgate rules for the dispensing of drugs by those other persons (i.e., other than licensed pharmacists) who may lawfully do so.
The board may pass rules regarding the dispensing of legend drugs under the authority of RCW 69.41.075 which provides, in part:
"The state board of pharmacy may make such rules for the enforcement and administration of this chapter as are deemed necessary or advisable. . . ."
[[Orig. Op. Page 7]]
Rule‑making authority properly delegated to a state agency is to be liberally construed. Spry v. Miller, 25 Wn.App. 741, 745, 610 P.2d 931 (1980). Chapter 69.41 RCW covers, among other things, the dispensing of legend drugs, and we believe that the grant of rule‑making authority is broad enough to include rules regarding that subject.
The Board of Pharmacy may also promulgate rules regarding the dispensing of controlled substances pursuant to RCW 69.50.301, which provides:
"The state board of pharmacy may promulgate rules and charge reasonable fees of not less than ten dollars or more than fifty dollars relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances within this state."
We thus also answer your second question in the affirmative. The Board of Pharmacy, in exercise of its rule‑making authority under RCW 69.41.075 and RCW 69.50.301,supra, may adopt rules concerning the dispensing of both legend drugs and controlled substances by whatever persons, pharmacists or otherwise, as are authorized to do so.7/
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
STEVEN W. SMITH
Assistant Attorney General
*** FOOTNOTES ***
1/A part of the Legend Drug Act.
2/A part of the Uniform Controlled Substances Act.
3/In addition, a family planning clinic under contract with the Department of Social and Health Services may dispense commercially pre‑packaged oral contraceptives upon the prescription of a licensed health care practitioner authorized to prescribe oral contraceptives. See, RCW 69.41.030.
4/See RCW 69.50.308(a) and (c) which contain the same implicit authorization to dispense controlled substances to those authorized to prescribe such drugs as RCW 69.41.050, supra, imparts in the case of legend drugs.
5/Accord, AGLO 1978 No. 12.
6/I.e., those practitioners above identified who have theexpress authority to prescribe, and implicit authority, by virtue of RCW 69.41.050 and RCW 69.50.308, supra, to dispense those drugs, and see also, again, RCW 69.41.030,supra.
7/In so answering your second question we have not referred to any proposed rules regarding the dispensing of either controlled substances or legend drugs, since you have not identified any. We would point out, however, that any rules adopted pursuant to either of the foregoing statutory authorizations must be reasonably consistent with, and cannot amend or change, the statute being implemented or any other statute. Fahn v. Cowlitz County, 3 Wn.2d 368, 610 P.2d 857 (1980).