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AGO Opinion 97034

Neb. Rev. Stat. § 71-1721 (1996); Controlled Substance Prescribing Authority of Advanced Registered Nurse Practitioners
Opinion 97034

DATE: June 10, 1997

SUBJECT: Neb. Rev. Stat. § 71-1721 (1996); Controlled Substance Prescribing Authority of Advanced Registered Nurse Practitioners

REQUESTED BY: Deb Thomas, Director Department of Health and Human

Services Regulation and Licensure

WRITTEN BY: Don Stenberg, Attorney General

James D. Smith, Assistant Attorney General

QUESTIONS

You have asked the following questions concerning Neb. Rev.

Stat. § 71-1721:




1. Aside from the limitations in Schedule II, are Advanced

Registered Nurse Practitioners ("ARNPs") authorized under

Nebraska law to prescribe controlled substances in

Schedules III, IV, and V?




2. Are ARNPs authorized under Nebraska law to dispense

sample medications which are controlled substances?




3. If the answer to No. 2 is in the affirmative, which

schedules of sample medications controlled are ARNPs

authorized to dispense?




CONCLUSIONS:




1. Yes, ARNPs are authorized under Nebraska law to prescribe

Schedule III, IV, and V controlled substances provided the

prescribing ARNP has a current controlled substance registration

from the Department as required by Neb. Rev. Stat. § 28-407.




2. Yes, an ARNP with a current controlled substance

registration may dispense, incident to practice only, sample

controlled substances which are provided by the manufacturer and

are provided at no charge to the patient.




3. Schedule III, IV, and V controlled substance samples may

be dispensed. Dispensing of any Schedule II samples is permitted

only for a maximum 72 hour supply for purposes of pain control.






ANALYSIS:




Neb. Rev. Stat. § 71-1721 provides in relevant part as

follows:




. . . . Advanced registered nurse practitioner practice shall

mean health promotion, health supervision, illness prevention

and diagnosis, treatment, and management of common health

problems and chronic conditions, including:




. . .




(2) Dispensing, incident to practice only, sample medications

which are provided by the manufacturer and are provided at no

charge to the patient; and




(3) Prescribing therapeutic measures and medications, except

controlled substances listed in Schedule II of section 28-405

not otherwise provided for in this section, related to health

conditions within the scope of practice. An advanced

registered nurse practitioner may prescribe controlled

substances listed in Schedule II of section 28-405 used for

pain control for a maximum seventy-two-hour supply if any

subsequent renewal of such prescription is by a licensed

physician.




Neb. Rev. Stat. § 71-1721 is part of the Nebraska Advanced

Registered Nurse Practitioner Act. The above language of Section

71-1721 was adopted as part of Laws 1996, LB 414, which was a

comprehensive amendment of previous Nebraska nurse practitioner

licensing statutes.




"Controlled substances" are defined by Neb. Rev. Stat. § 28-

401 as being "a drug, substance, or immediate precursor in

Schedules I to V of Section 28-405." Neb. Rev. Stat. § 28-405,

which is part of the Nebraska Uniform Controlled Substances Act,

lists all drugs and substances which are controlled substances and

classifies them under one of five schedules. Schedule I controlled

substances are substances which have a high potential for abuse,

and which have no accepted medical use in treatment or lack

accepted safety for use in treatment under medical supervision.

Schedules II through V controlled substances are drugs which have

accepted medical use in treatment but varying potential for abuse

and addiction depending on the particular classification schedule.

Schedule II controlled substances are those with high potential for

abuse and dependence. Schedule III, IV, and V controlled

substances have lesser potential for abuse and dependence with

Schedule V controlled substances having the least potential for

abuse and dependence of all the controlled substance schedules.




Section 71-1721 uses the word "medications", rather than the

term "controlled substances", for ARNP prescribing and dispensing

authority. The term "medications" is not specifically defined in

the Advanced Registered Nurse Practitioner Act. The term

"medications" is also not defined by Neb. Rev. Stat. § 49-801,

which is the statute containing general definitions for use with

all Nebraska statutes. Thus, the question is the proper statutory

construction in determining whether the word "medications" includes

"controlled substances" in the limited context of Neb. Rev. Stat.

§ 71-1721.




In construing a statute, statutes relating to the same subject

matter are to be construed together so as to maintain a consistent

and sensible scheme. Chrysler Corp. v. Lee Janssen Motor Co., 248

Neb. 281 (1995). As stated by the Nebraska Supreme Court, "Like

people, words are known by the company they keep. . . and thus take

meaning from the words with which they are associated." John

Markel Ford v. Auto-Owners Ins. Co., 249 Neb. 286 (1996).




The company kept by the word "medications" in Section 71-1721

is the word "prescribing". The Legislature also used the word

"except" to place a limit on ARNP medication prescribing authority

for Schedule II controlled substances. The word "except" appears

in context as an exclusion from broader "prescribing medications"

authority.




The terms "prescribe" and "prescription" are terms of art.

The terms "prescribe" and "prescription", when referring to drugs,

typically mean drugs which can be obtained from pharmacies only by

an order from a licensed medical practitioner who has legal

authority to issue such an order or "prescription". A

"prescription" from an authorized licensed practitioner isn't

needed for a patient or consumer to obtain noncontrolled, over-the-

counter medication from a pharmacy.




A "prescription" is needed for a pharmacist to dispense a

controlled substance. See, Neb. Rev. Stat. § 28-414. A

"prescription" is also needed for certain "legend" drugs. Neb.

Rev. Stat. § 28-1437. Section 28-401(11) of the Nebraska Uniform

Controlled Substance Act defines "prescribe" as the act of a

"medical practitioner licensed under the laws of this state in

issuing an order, prescription, or direction to a pharmacist or

pharmacy to dispense a drug as required by the laws of this state".

Thus, the Legislature's use of the words "prescribing" in company

with "medications" in Section 71-1721 signifies an intention to

grant ARNPs broader authority than simply placing orders for over-

the-counter medications which patients could obtain on their own

absent any order from an ARNP.




It also makes little sense that the Legislature intended ARNPs

to have limited Schedule II pain prescribing authority while

simultaneously intending that ARNPs have no prescribing authority

for Schedule III through V controlled substances, which latter

schedules are for less addictive and less dangerous drugs than

Schedule II drugs. There are controlled substances in the

Schedules III through V, such as hydrocodone and dextropropoxyphene

appearing in Schedules III and IV, which can be used for pain

control. The logic of Section 71-1721's limit on ARNP prescribing

Schedule II prescribing authority is not to require ARNPs to

prescribe highly addictive and dangerous Schedule II drugs, instead

of less addictive and dangerous Schedule III through V drugs, to

alleviate pain. Rather, the logic of the statutory limit on

Schedule II prescribing authority is that it is intended to be an

exclusion from broader general authority to prescribe controlled

substances.




Thus, the reasonable and necessary construction of Section 71-

1721 is that ARNPs may prescribe Schedule III through V controlled

substances. ARNPs have limited Schedule II prescribing authority

as specified by the statute.




Applying the above logic, ARNPs may also dispense Schedule III

through V sample controlled substances, incident to practice only.

The prescribing restrictions on Schedule II controlled substances

also apply to dispensing of sample medications. There is no

indication of any Legislative intent to permit ARNPs to dispense

more or less than they could prescribe. Rather, the intent appears

to be to allow ARNPs to dispense what they can prescribe provided

what they are dispensing is only incident to practice, are samples

which are provided by the manufacturer, and there is no charge to

the patient for the samples.




A final caveat is mentioned. Section 28-407(1) of the

Nebraska Uniform Controlled Substance Act requires every person who

prescribes, distributes, or dispenses controlled substances to

obtain a controlled substance registration issued by the Department

in accordance with the Department's rules and regulations.




Among the purposes of the Uniform Controlled Substances Act is

the following:




Another object of this Act is to establish a closed regulatory

system for the legitimate handlers of controlled drugs in

order to better prevent illicit drug diversion. This system

will require that these individuals register with a designated

State agency, maintain records, and make biennial inventories

of all controlled drug stocks.




Uniform Controlled Substances Act, Prefatory Note.




Even though Neb. Rev. Stat. § 71-1721 provides a general scope

of authority for ARNPs to prescribe controlled substances as

discussed in this opinion, Section 28-407 imposes the additional

specific requirement that each ARNP possess a controlled substance

registration issued by the Department prior to actually prescribing

or dispensing controlled substances. Title 172, Neb. Admin. Code,

Chapter 129 contains the Department's regulations for controlled

substance registrations. Specifically, 172 NAC 129:003.01B lists

the categories of licensed professionals who may obtain a

controlled substances registration from the Department under the

authority of Neb. Rev. Stat. § 28-407. 172 NAC 129:003.01B does

not include current Nebraska licensed ARNPs among the licensed

professionals who can obtain a controlled substance registration

from the Department. Thus, the Department may want to consider

reviewing and amending its regulations.




Sincerely,




DON STENBERG

Attorney General






James D. Smith

Assistant Attorney General




























31-426-11