Could Maryland pharmacists legally fill a prescription written by a nurse practitioner instead of a doctor?

Plain-English summary

A member of the Maryland House of Delegates asked whether pharmacists were legally allowed to fill prescriptions written by nurse practitioners. The question arose because Maryland's recodified Pharmacy Act defined "authorized prescriber," the only kind of person whose prescriptions a pharmacist could fill, as a licensed dentist, physician, podiatrist, or veterinarian, with no mention of nurse practitioners at all.

The Attorney General concluded that pharmacists were not prohibited from filling nurse practitioners' prescriptions. Nurse practitioners already had authority to prescribe drugs under a separate statute governing physicians' delegation of duties, exercised under a required written agreement with a supervising physician. The opinion reasoned that the narrow "authorized prescriber" definition in the Pharmacy Act was adopted only to consolidate scattered references to prescribers, not to silently strip nurse practitioners of prescribing authority the legislature had given them elsewhere, and that reading the definition literally would create the absurd result of nurse practitioners holding the power to write prescriptions no pharmacist could ever fill.

Currency note

This opinion was issued in 1986. 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

Under 1986 Maryland law, did a pharmacist risk discipline for filling a prescription that a nurse practitioner, rather than a doctor, had written?
No, according to this opinion. The Attorney General concluded that pharmacists were not prohibited from filling prescriptions properly issued by nurse practitioners acting under their required written agreement with a physician.

Did the Pharmacy Act's list of "authorized prescribers" (dentists, physicians, podiatrists, and veterinarians) mean nurse practitioners were left off the list on purpose?
No. The opinion concluded the definition was adopted only to consolidate scattered prior references to prescribers, not to eliminate nurse practitioners' existing prescribing authority, and that the legislative history showed no intent to make that kind of substantive change.

Could a Maryland nurse practitioner in 1986 write any prescription they wanted, or were there limits?
Nurse practitioners could prescribe only "under the terms and conditions set forth" in a written agreement with a supervising physician, per the regulations the opinion described; the opinion did not address controlled dangerous substances, which were governed by a separate statutory scheme.

Background and statutory framework

Maryland law authorized nurse practitioners to prescribe drugs through joint regulations of the Board of Examiners of Nurses and the Board of Medical Examiners, issued under the general statute allowing physicians to delegate duties, HO §14-304(a). A certified nurse practitioner could prescribe "under the terms and conditions set forth in the written agreement" with a supervising physician, per COMAR 10.27.07.02A(4). When the Pharmacy Act was recodified in 1981 as Title 12 of the Health Occupations Article, it barred pharmacists from filling a prescription without one from an "authorized prescriber," and for the first time defined that term to mean "any licensed dentist, licensed physician, licensed podiatrist, or licensed veterinarian." HO §12-101(b).

The opinion reasoned that reading this definition as an exhaustive list of who could write a fillable prescription would conflict with HO §12-102(a), which states the Pharmacy Act does not limit a health occupation's practice authority otherwise granted, and would produce the "absurd" result of nurse practitioners having full authority to prescribe but no pharmacist able to fill what they wrote. The Revisor's Note describing the "authorized prescriber" definition as new language replacing "diverse references" to prescribers, combined with case law holding that recodifications are not presumed to work substantive changes absent unmistakable legislative intent, supported reading the Pharmacy Act's definition as leaving nurse practitioners' existing prescribing authority intact. The opinion drew a parallel to the separate "practitioner" definition governing controlled dangerous substances under Article 27, which likewise operates independently of the Pharmacy Act's "authorized prescriber" term.

Citations

Statutes:

• HO §7-302(b), §7-305, and §7-504(c)(3) (certification and status of nurse practitioners)
• HO §14-304(a) and §14-304(d)(1) (delegation of duties by physicians, including prescribing authority)
• HO §14-101(i) (prescribing as part of the practice of medicine)
• HO §7-101(h)(2)(iv)2 and §7-205(a)(3)(ii) (Nursing Board's authority over delegated and additional nursing acts)
• HO §12-311(b)(14) (discipline for filling a prescription without an authorized prescriber)
• HO §12-101(b) (definition of "authorized prescriber")
• HO §12-102(a) (Pharmacy Act does not limit otherwise-authorized practice)
• Article 27, §285(a), §277(t)(1), and §277(a) (controlled dangerous substances prescribing rules)
• Former Article 43, §122(b)(6), §266A(c)(1)(vii), §249, §254B, and §250(a)(1) (predecessor Pharmacy Act provisions)
• COMAR 10.27.07.01B(4) and 10.27.07.03A (nurse practitioner certification regulations)
• COMAR 10.19.03.07C (pharmacist regulatory requirements)

Cases:

• Maguire v. State, 192 Md. 615, 623-24
• Duffy v. Conaway, 295 Md. 242, 257 (1983)
• In re Special Investigation No. 236, 295 Md. 573, 576 (1983)
• Office and Professional Employees International Union, Local 2 v. MTA, 295 Md. 88, 100 (1982)
• Hoffman v. Key Federal Savings & Loan Association, 286 Md. 28, 37 (1979)
• Bureau of Mines v. George's Creek Coal & Land Co., 272 Md. 143, 155 (1974)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Health Occupations—Nurse Practitioners—Pharmacists—Pharmacists Are Not Prohibited From Filling Prescriptions Properly Issued By Nurse Practitioners.

March 25, 1986

The Honorable Marilyn Goldwater
Maryland House Of Delegates

You have requested our opinion whether, under current law, pharmacists are prohibited from filling prescriptions issued by nurse practitioners.

For the reasons stated below, we conclude that pharmacists are not prohibited from filling prescriptions properly issued by nurse practitioners.

I
Nurse Practitioners and the Issuance of Prescriptions

In 61 Opinions of the Attorney General 619, 620 (1976), this office described the role of nurse practitioners as follows:

"Historically, nursing has been an adjunct to the practice of medicine. Although the nurse certainly did many things independently, nurses were largely thought of as persons trained to follow the directions of physicians regarding the care and treatment of the physicians' patients. The development of the modern health care delivery system has, however, created a need to expand the functions of physicians' auxiliaries. A person capable of making independent, albeit limited, medical judgments and of performing medical functions which may transcend traditional functions of nurses, is required. Such persons might be stratified somewhere between the traditional nurse and the physician. ... The General Assembly has acted both to encourage the expanded role of the nurse and to allow delegation by physicians of certain medical functions to other qualified persons."

The speciality of nurse practitioner is authorized in the statute and governed in detail by regulation. Under §7-302(b) of the Health Occupations Article ("HO" Article):

"An applicant for certification as a certified nurse practitioner shall:
(1) Be a registered nurse;
(2) Complete a nurse practitioner program approved by the Board [of Examiners of Nurses]; and
(3) Meet the other requirements that the Board sets."

In addition, HO §7-305 provides that "[a]n applicant qualifies for certification as a certified nurse practitioner only if the applicant passes a Board approved examination." The special status of nurse practitioners is further recognized by the statute's creation of a separate peer review committee for certified nurse practitioners. HO §7-504(c)(3).

Under the pertinent regulations, a nurse practitioner is "a registered nurse who by reason of certification under these regulations may engage in the activities authorized by these regulations." COMAR 10.27.07.01B(4). See also COMAR 10.27.07.03A (requirements for certification, including examination). These regulations were issued jointly by the Board of Examiners of Nurses ("Nursing Board") and the Board of Medical Examiners ("Medical Board"). 8 Md. Reg. 473 (March 6, 1981).

The actual practice of a nurse practitioner is controlled by a "written agreement with the physician." COMAR 10.27.07.02A(2). A nurse practitioner may, "under the terms and conditions set forth in the written agreement ... [p]rescrib[e] drugs." COMAR 10.27.07.02A(4). Correspondingly, the physician is to "[e]stablish and review drug and other medical guidelines with the nurse practitioner [and] [p]articipate with the nurse practitioner in periodically reviewing and discussing medical diagnoses and the therapeutic or corrective measures employed in the practice setting." COMAR 10.27.07.02B(2)(b) and (c).

The nurse practitioner regulations are authorized by the statute governing the delegation of duties by licensed physicians.1 Under HO §14-304(a), "to the extent permitted by the rules, regulations, and orders of the [Medical] Board and the Commission [on Medical Discipline], an individual to whom duties are delegated by a licensed physician may perform those duties without a license as provided in this section."2 If "a duty that is to be delegated ... is a part of the practice of a health occupation that is regulated ... by another board, any rule or regulation concerning that duty shall be adopted jointly by the Board of Medical Examiners and the board that regulates the other health occupation." HO §14-304(d)(1).3

In an opinion reviewing the legality of these regulations, we observed that the Medical Board and the Nursing Board had "broad administrative discretion" to decide what duties nurse practitioners would be permitted to perform. Opinion No. 80-087, at 7 (November 24, 1980) (unpublished).

In short, nurse practitioners unquestionably have authority to issue prescriptions, in accordance with the written agreement with a physician required by the regulation. Thus, the sole question is whether the statute regulating the practice of pharmacy prevents these prescriptions from being filled.

II
The Filling of Nurse Practitioner Prescriptions

A. The Former Pharmacy Act

When nurse practitioners were first authorized to issue prescriptions in 1981, pharmacists had clear legal authority to fill those prescriptions under the statute regulating the practice of pharmacy (the "Pharmacy Act").4 Several provisions then in the statute reflected the obvious fact that the vast majority of prescriptions are written by physicians and dentists. See, e.g., former Article 43, §§249 ("physicians and dentists [may] personally compound and dispense their own prescriptions") and 254B ("prescription presented more than 120 days from the date it was issued by a physician or dentist" not to be filled). However, no provision of the former Pharmacy Act purported to catalog exhaustively or to define all those who had authority to issue prescriptions.

Under the former Pharmacy Act, a pharmacist was subject to discipline for the "[d]ispensing or sale of any drug for which a prescription is required without first having received from an authorized prescriber a written or oral prescription for the drug." Former Article 43, §266A(c)(1)(vii). The term "authorized prescriber" was undefined. Hence, because nurse practitioners were authorized by regulation to issue prescriptions under certain circumstances, they were "authorized prescribers" within the meaning of former Article 43, §266A(c)(1)(vii). And, in fact, the prescriptions of nurse practitioners were filled without incident.

B. The Recodified Pharmacy Act

In 1981 the Pharmacy Act was recodified as Title 12 of the Health Occupations Article. The prohibition on unauthorized prescriptions contained in former Article 43, §266A(c)(1)(vii) was carried forward without significant change to HO §12-311(b)(14):

"[T]he [State] Board [of Pharmacy] ... may deny a license to any applicant, reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the applicant or licensee ...

Without first having received a written or oral prescription for the drug from an authorized prescriber, dispenses any drug for which a prescription is required."

However, for the first time the term "authorized prescriber" was defined. Under HO §12-101(b), "'authorized prescriber' means any licensed dentist, licensed physician, licensed podiatrist, or licensed veterinarian." The Revisor's Note describes this definition as "new language added to replace the various, unnecessarily diverse references throughout the former law to those who may issue prescriptions."

Thus, if the listing in the definition of "authorized prescriber" is construed to be an exclusive and exhaustive listing of those who are authorized to issue prescriptions, then the prohibition in HO §12-311(b)(14) would preclude a pharmacist from filling a prescription issued by a nurse practitioner. However, such a reading would, in our view, be inconsistent with other provisions in the Pharmacy Act and contrary to the manifest legislative intent.

C. Construction of "Authorized Prescriber"

The Pharmacy Act "does not limit the right of an individual to practice a health occupation that the individual is authorized to practice under this article." HO §12-102(a). As discussed in Part I above, a nurse practitioner is authorized to issue prescriptions as part of his or her "practice [of] a health occupation." If the definition of "authorized prescriber," for purposes of the Pharmacy Act, were read so as to effectively prevent nurse practitioners from issuing prescriptions, just such a limitation of practice would occur.

That reading would yield the absurd situation in which nurse practitioners had full authority to issue worthless prescriptions. We are unwilling to ascribe to the General Assembly an intention to use the backhanded device of a definition to do precisely what HO §12-102(a) says is not to be done by the Pharmacy Act. See Maguire v. State, 192 Md. 615, 623-24 (definitions must be given a "reasonable construction" in the entire context of the statute, to avoid "absurdity").5

The grounds for discipline set out in HO §12-311(b), including the prohibition in HO §12-311(b)(14) against filling a prescription from someone other than "an authorized prescriber," as newly defined in HO §12-101(b), is described in the Revisor's Note as "new language derived without substantive change" from several provisions of former Article 43. (Emphasis added.) But because pharmacists were not prohibited by the predecessor provision from filling the prescriptions of nurse practitioners, a literal reading of "authorized prescriber" in this context would effect a substantive change, contrary to the express intent.

As the Court of Appeals has repeatedly held, "a change in a statute as part of a general recodification will ordinarily not be deemed to modify the law unless the change is such that the intention of the Legislature to modify the law is unmistakable." Duffy v. Conaway, 295 Md. 242, 257 (1983). See also In re Special Investigation No. 236, 295 Md. 573, 576 (1983); Office and Professional Employees International Union, Local 2 v. MTA, 295 Md. 88, 100 (1982); Hoffman v. Key Federal Savings & Loan Association, 286 Md. 28, 37 (1979); Bureau of Mines v. George's Creek Coal & Land Co., 272 Md. 143, 155 (1974). Here, in light of HO §12-102(a) and the Revisor's Note, there is no indication of a legislative intent to effect a substantive change concerning nurse practitioners through the adoption of a definition of "authorized prescriber" in the Pharmacy Act. To the contrary, the intent to make no substantive change is clear.

Moreover, quite apart from the situation of nurse practitioners, the term "authorized prescriber," as defined in HO §12-101(b), cannot be read as if it alone identified those whose prescriptions may be filled. For example, the subheading of Article 27 that deals with controlled dangerous substances contains definitions and restrictions that must be read in conjunction with the Pharmacy Act. Under Article 27, §285(a), certain controlled dangerous substances may not be "dispensed without the written prescription of a practitioner." A "practitioner" is defined as "a physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or administer a controlled dangerous substance in the course of professional practice or research in this State." Article 27, §277(t)(1). See also Article 27, §277(a) (definition of "dispense").

The definition of "authorized prescriber" in HO §12-101(b) cannot and should not be read as an implied repeal of any of the authorizations or restrictions in the controlled dangerous substances subheading of Article 27. That is, a pharmacist is not authorized to fill a prescription for a controlled dangerous substance, even if the prescription is written by an "authorized prescriber" under HO §12-101(b), unless all of the requirements pertaining to controlled dangerous substances are satisfied; and conversely, a pharmacist is not prohibited from filling a prescription for controlled dangerous substances lawfully issued by a "practitioner" under Article 27, §285, even if the practitioner does not come within the definition of "authorized prescriber" in HO §12-101(b).6

This reasoning, we think, is pertinent to your question: Just as a pharmacist cannot rely solely on the provisions within the four corners of the Pharmacy Act in prescribing controlled dangerous substances, so the pharmacist must look to other law in filling prescriptions written by nurse practitioners.

In sum, the definition of "authorized prescriber" in HO §12-101(b) does not supplant other law bearing on the issuance and filling of prescriptions.

III
Conclusion

It is our opinion that pharmacists are not prohibited from filling prescriptions properly issued by nurse practitioners.

Stephen H. Sachs
Attorney General
Jack Schwartz
Chief Counsel
Opinions and Advice
Barbara H. Foster
Assistant Attorney General

1 The statute in effect at the time that the nurse practitioner regulations were adopted likewise authorized the delegation of duties by physicians, if permitted by regulation. See former Article 43, §122(b)(6).

2 The prescribing of drugs is, of course, part of the practice of medicine. See HO §14-101(i) and former Article 43, §119(f)(1). See also 61 Opinions of the Attorney General at 625 n. 4.

3 The scope of practice of registered nursing includes both "[d]elegated medical functions" and "any additional acts authorized by" the Board of Examiners of Nurses under its authority. HO §7-101(h)(2)(iv)2 and (v). The Nursing Board has the authority "to adopt rules and regulations for the performance of additional acts that ... are recognized jointly by the medical and nursing professions as proper to be performed by registered nurses." HO §7-205(a)(3)(ii). See also former Article 43, §294(a)(2).

4 The "practice of pharmacy" was generally defined in pertinent part as the "selection, preparation, and dispensing of drugs, medicines, and devices used in the diagnosis, treatment, and prevention of disease." Former Article 43, §250(a)(1).

5 "In order to avoid repugnance with other parts of the act and conflict with legislative intent, the words [of a definition] may be restricted or expanded by the subject matter. The propriety of construing the words is obvious for all parts of an act should be in harmony with the intent of the act." 2A Singer, Sutherland Statutory Construction §47.07 at 133 (Sands 4th ed. 1984 rev.).

6 The pharmacist must also take account of various requirements specified in regulation. See, e.g., COMAR 10.19.03.07C.