Request By:
Mr. J. H. Voige
Executive Secretary
Kentucky Board of Pharmacy
P.O. Box 553
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
In a letter to this office you indicated that you were the executive secretary of the Kentucky board of pharmacy and in that capacity you requested an opinion concerning the dispensing of legend drugs in county health departments, family planning councils or clinics, and some comprehensive care centers by persons other than physicians. More importantly, you requested an opinion as to what might be done to enforce the laws regarding such practice and to stop these state agencies from stocking and illegally dispensing legend drugs.
Your interpretation of KRS Chapter 315 is correct. KRS 315.020(1) prohibits anyone other than a pharmacist from compounding and dispensing practioners' prescriptions. KRS 315.020(2) provides for an exception to this general rule by permiting a nonpharmacist to compound and dispense prescriptions but only if the nonpharmacist performs these activities "under the immediate supervision of a registered pharmacist. " KRS 315.040(2) exempts licensed practicing physicians from the coverage of KRS Chapter 315 whenever the provisions interfere with his professional practice and prevent him from keeping drugs or medicines that he needs for compounding his own prescriptions or supplying to his patients any articles that are necessary. However, the same limitations exist for a physician's agent as exist for a pharmacist's agent, i.e. since nurses are not authorized to compound and dispense drugs these activities must be performed as the agent of the physician and under his immediate supervision. See OAG 76-217.
Thus, as a general rule a nurse may compound and dispense a practitioner's prescriptions whether oral or written so long as she is under his immediate supervision. However, there is an exception to this rule also, i.e., when the prescription is for a drug or medicine which is a controlled substance under KRS Chapter 218A.
A nurse is not authorized to dispense any controlled substance even under the immediate supervision of a licensed practicing physician unless the physician has prescribed the substance. If the drug is a schedule II controlled substance under KRS 218.180(1), the prescription must be written. If the drug is a schedule III, IV, or V controlled substance, which is also a prescription drug, the prescription may be either written or oral. If a nurse dispenses a controlled substance without the appropriate prescription from the supervising physician, she is violating the provisions of KRS Chapter 218A and may be prosecuted therefor.
Similarly, if a nurse or other person is dispensing any sort of prescription drug without the immediate supervision of a pharmacist or physician then they would be in direct violation of the prohibitions against such activity, i.e., KRS 315.020(1)(2) and KRS 218A.180(1)(2). From the situation that you described to us it appears that the county health departments, family planning clinics, and comprehensive care centers may be in violation of these statutes. If so, then there are remedial measures available to you by which these activities may be stopped.
KRS 218A.240(1) and (3) provide:
(1) It is hereby made the duty of all peace officers within this state, the state police, the department for human resources, their officers and agents, and of all city, county, and Commonwealth's attorneys, and the attorney general, within their respective jurisdictions, to enforce all provisions of this chapter and cooperate with all agencies charged with the enforcement of the laws of the United States, of this state, and of all other states relating to controlled substances.
(3) The Kentucky board of pharmacy, its agents and inspectors, shall have the same powers of inspection and enforcement as the department for human resources. (Emphasis added.)
KRS 218A.240(5) provides:
Notwithstanding the existence or pursuit of any other remedy, civil or criminal, any law enforcement authority may maintain, in its own name, an action to restrain or enjoin any violation of this chapter.
Additionally, KRS 315.191 provides for "powers and duties of board of pharmacy" wherein it is stated:
The board is authorized to:
(6) Investigate all complaints or violations of the state pharmacy laws and bring all such cases to the notice of the proper law enforcement authorities.
Furthermore, KRS 315.230(1) and (2) provide:
(1) Notwithstanding the existence or pursuit of any other remedy (civil or criminal) the board is hereby authorized to institute and maintain actions to restrain and enjoin any violation of this chapter, or the rules and regulations of the board.
(2) City, county and Commonwealth's attorneys, and the attorney general, shall within their respective jurisdictions represent the board, its officers, agents, and inspectors, in the enforcement of the provisions of this chapter, and the rules and regulations of the board, but when the board deems it necessary, it may employ at its discretion, special attorneys to assist the board, or its officers, agents, or inspectors, and may pay reasonable compensation, fees and other costs from any unexpended funds.
It appears that the board of pharmacy has ample authority to bring an action to enjoin the unsupervised activities of the nurses and other persons who have been dispensing legend drugs at the county health departments etc. pursuant to KRS 218A.240(1)(3) and (5) as well as KRS 315.191(6) and 315.230(1) and (2). These provisions were enacted with the intent that the board of pharmacy should have the authority to enforce the rules and regulations concerning the profession of pharmacy and related subject matters, i.e., control of prescription drugs.