Can the Virginia Department of Health authorize doctors to prescribe antibiotics for the partners of patients with chlamydia or gonorrhea without seeing the partners first?

Plain-English summary

Delegate Stolle (himself a physician) asked the AG whether the Virginia Department of Health (VDH) had authority to use "expedited partner therapy" (EPT) as a public-health measure against sexually transmitted diseases. The Centers for Disease Control had recommended EPT as a useful option for heterosexual chlamydia and gonorrhea management. EPT is the practice of treating the sex partners of a diagnosed patient without having those partners come in for an exam first; the clinician hands the diagnosed patient the medication (or a prescription in the partner's name) to deliver to the partner.

The conflict with ordinary Virginia prescribing law is obvious. A practitioner generally may prescribe medication only after a bona fide practitioner-patient relationship is established. As the AG quoted, that relationship requires (i) obtaining a medical or drug history, (ii) providing information about benefits and risks, (iii) performing or having performed an appropriate examination, and (iv) initiating additional intervention and follow-up care if necessary. EPT skips the physical exam of the partner, which is normally the third pillar of the bona fide relationship.

The AG concluded that Virginia law does allow EPT, but only because the General Assembly created a narrowly tailored statutory exception in § 54.1-3303(C). The exception authorizes a practitioner to prescribe certain substances to other persons in close contact with a diagnosed patient. The practitioner must establish with the close contact all attributes of a bona fide relationship except the examination, and must satisfy three more conditions:

1. A full bona fide practitioner-patient relationship with a diagnosed patient who is in close contact with the person to be prescribed the medicine.
2. Professional judgment that "there is urgency to begin treatment to prevent the transmission of a communicable disease."
3. A belief that "emergency treatment is necessary to prevent imminent risk of death, life-threatening illness, or serious disability."

The opinion then drew a tight line around VDH's authority. The AG quoted the Department's own regulation, which says the Board of Health and the Commissioner "reserve the right to use any legal means to control any disease which is a threat to public health." Because § 54.1-3303(C) is the legal means by which EPT is authorized, VDH may make use of EPT. But the AG held that "when a statute creates a specific grant of authority, the authority exists only to the extent specifically granted in the statute," so neither the Board nor the Commissioner may expand or alter the parameters of EPT outside the constraints of § 54.1-3303(C).

The practical limit is significant. The CDC's broad recommendation of EPT for chlamydia and gonorrhea fits the Virginia statute only when each prescription is supported by the practitioner's belief that emergency treatment is necessary to prevent "imminent risk of death, life-threatening illness, or serious disability." The AG did not address whether the long-term complications of chlamydia or gonorrhea meet that threshold; that is a clinical judgment left to the practitioner.

Currency note

This opinion was issued in 2013. 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.

EPT statutes vary considerably across states and have evolved since 2013. Anyone advising a Virginia practitioner should look at current § 54.1-3303(C) and any later Board of Medicine guidance before relying on this opinion.

Common questions

What is expedited partner therapy?
A practice in which a clinician treating one patient for an STD also provides medication (or a prescription) for that patient to deliver to a sex partner who hasn't been seen by the clinician. The goal is to interrupt transmission cycles by treating partners quickly, even if the partner won't or can't come in for a visit.

Why does the law require an exam before prescribing?
Because prescribing medicine to someone you've never examined carries risks: undisclosed allergies, drug interactions, contraindications, undiagnosed comorbidities. Virginia's general prescribing requirements are designed to surface those issues before the prescription is written.

What does "imminent risk of death, life-threatening illness, or serious disability" mean for STDs?
The statute doesn't define these phrases, and the opinion didn't apply them to any specific infection. Clinical judgment controls. Whether a given STD case rises to "imminent risk of death, life-threatening illness, or serious disability" depends on the practitioner's assessment of that case.

Can a pharmacist refuse to fill an EPT prescription?
The opinion doesn't address that. Pharmacists have their own professional and statutory obligations and may have concerns about prescriptions written for non-examined patients. In practice, EPT requires coordination between practitioners and pharmacists.

Background and statutory framework

The key provisions the opinion relied on:

• The general prescribing rule: a practitioner may prescribe only within a bona fide practitioner-patient relationship, which the AG described as medical/drug history, benefit-and-risk information, an appropriate examination, and follow-up care.
• Va. Code § 54.1-3303(C) is the EPT exception. It lets a practitioner prescribe certain substances to a close contact without examining the contact, on the conditions described above.
• The Department's "any legal means" regulation, quoted but not numbered in the opinion, which the AG read narrowly.

The interpretive principle the AG quoted: "when a statute creates a specific grant of authority, the authority exists only to the extent specifically granted in the statute." VDH cannot use a general regulation to expand a specific statutory exception.

Citations

• Va. Code § 2.2-505 (authority for the advisory opinion)
• Va. Code § 54.1-3303(C)
• Centers for Disease Control and Prevention guidance on expedited partner therapy (referenced by the requester, not cited by formal title in the opinion)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-112_Stolle.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
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

August 2, 2013

The Honorable Christopher P. Stolle, M.D.
Member, House of Delegates
Post Office Box 5429
Virginia Beach, Virginia 23471

Dear Delegate Stolle:

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 the Virginia Department of Health ("Department") has authority to utilize expedited partner therapy as a measure to treat curable communicable diseases that pose a threat to the public health.

Response

It is my opinion that the Department may utilize expedited partner therapy only to the extent that the requirements of § 54.1-3303(C) of the Code of Virginia are met.

Background

You relate that the Centers for Disease Control and Prevention ("CDC") has concluded that expedited partner therapy is a useful option to facilitate partner management among heterosexual men and women with chlamydial infection or gonorrhea. The CDC defines "expedited partner therapy" as "the practice of treating the sex partners of persons with sexually transmitted diseases . . . without an intervening medical evaluation or professional prevention counseling." The usual method of expedited partner therapy is through patient-delivered partner therapy wherein a clinician provides his patient with medication intended for the patient's partner or provides a prescription in the partner's name for the patient to deliver.

Applicable Law and Discussion

Under Virginia law, a practitioner generally may prescribe drugs only to persons with whom he has a bona fide practitioner-patient relationship. To enable the practitioner to lawfully prescribe a controlled substance, a bona fide practitioner-patient relationship requires the practitioner to:

(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.

Thus, a practitioner normally is required to examine a patient prior to prescribing medicine that constitutes a controlled substance.

Upon meeting certain conditions, § 54.1-3303(C) permits a practitioner to prescribe certain substances to other persons in close contact with a diagnosed patient. This authority requires the practitioner to establish with the close contact all attributes of a bona fide practitioner-patient relationship, except that the practitioner need not conduct an examination of the close contact. In addition, the practitioner must satisfy three other criteria. First, the practitioner must have a full bona fide practitioner-patient relationship with a diagnosed patient who is in close contact with the person to be prescribed the medicine. Second, the practitioner, in his or her professional judgment, must believe that "there is urgency to begin treatment to prevent the transmission of a communicable disease[.]" Finally, the practitioner must believe that "emergency treatment is necessary to prevent imminent risk of death, life-threatening illness, or serious disability." Accordingly, I conclude that, provided these statutory requirements are fully met, a practitioner may lawfully practice such limited form of "expedited partner therapy."

Nevertheless, your inquiry focuses on the authority of the Department to use this treatment method. As you note, regulations of the Department provide that "[t]he board [of health] and commissioner [of the Department] reserve the right to use any legal means to control any disease which is a threat to public health." Section 54.1-3303(C) provides the legal means for practitioners to prescribe medicine without first examining the patient, subject to the limitations discussed above. "[W]hen a statute creates a specific grant of authority, the authority exists only to the extent specifically granted in the statute." Neither the Board of Health nor the Commissioner of the Department of Health has any authority to expand or otherwise alter the parameters of expedited partner therapy outside of the constraints set by § 54.1-3303(C).

Conclusion

Accordingly, it is my opinion that the Virginia Department of Health may utilize expedited partner therapy if it does so in accordance with § 54.1-3303(C).

With kindest regards I am,

Kenneth T. Cuccinelli, II
Attorney General