Does a Virginia pharmacist have to offer counseling when the same medication is reissued with a new date?

Plain-English summary

Delegate Scott Wyatt asked the AG whether a prescription is "new" for counseling purposes if the only thing that changed from the last one is the date, the medication, the dose, the directions, and the formulation all stay the same. The AG said yes. Under § 54.1-3319(B), a pharmacist must offer to counsel any person presenting a "new prescription" for filling. Because the Code does not define "new prescription," and the Board of Pharmacy's regulations do not either, the AG applied the plain-and-ordinary meaning of "new" (Webster's: "being other than the former or old") and concluded that a different date alone is enough to make a script "other than the former or old."

The practical takeaway: pharmacists in Virginia cannot skip the counseling offer just because they have filled the same medication for the same patient before. A fresh script with a new date triggers the duty to offer counseling.

What this means for you

Virginia pharmacists

The opinion holds that the § 54.1-3319(B) duty to offer counseling is triggered by any "new prescription," and that a script for the same medication, same dose, same directions, and same formulation, but bearing a new date, qualifies as "new." Under the opinion, the counseling offer is required even when the medication is unchanged from a prior fill.

Patients picking up a prescription

The opinion means a pharmacist must offer to counsel you each time you present a new prescription, even for a medication you have taken for years. The statute requires the offer, not your acceptance; the opinion does not require you to accept counseling.

Pharmacy compliance officers

The opinion is the AG's reading of § 54.1-3319(B), not a regulation, and is persuasive rather than binding authority. It notes that neither Title 54.1 nor the Board of Pharmacy's regulations at 18 Va. Admin. Code § 110-20 define "new prescription," so the AG supplied the plain-and-ordinary meaning of "new."

Prescribing physicians

The opinion holds that a subsequent prescription for the same medication, once it carries a new date, is a "new prescription" for counseling purposes at the pharmacy. The opinion addresses only the pharmacist's counseling duty; it does not speak to a prescriber's obligations.

Common questions

Q: I take a daily heart medication. Why does the pharmacist always offer to counsel me?
A: Because Virginia law (§ 54.1-3319(B)) requires it, and as of this 2021 opinion, the AG reads "new prescription" broadly enough that even a re-dated script for the same drug counts. The offer protects you: patients sometimes have new symptoms or new other medications, and the pharmacist's question is your chance to flag them.

Q: Does this mean I get counseling for every refill?
A: A refill on an existing prescription is different from a new prescription with a new date. The opinion specifically addresses the latter. If your script is reissued (new paperwork, new date), the counseling offer is required.

Q: I want to skip the counseling. Can I?
A: Yes. The law requires the pharmacist to offer counseling; it does not require you to accept it. You can decline.

Q: Can the Board of Pharmacy override this opinion by adopting a different definition of "new prescription"?
A: Yes. The opinion explicitly notes that no statutory or regulatory definition exists. If the Board promulgated a regulation defining "new prescription" differently, that regulation would govern within its scope. As of the opinion date, no such regulation existed.

Q: What if I just need a quick pick-up and do not want to be slowed down?
A: Counseling offers are quick. A standard "Do you have any questions for the pharmacist today?" satisfies the offer. You can always say no.

Background and statutory framework

Virginia Code § 54.1-3319(B) requires that "[a] pharmacist shall offer to counsel any person who presents a new prescription for filling." The term "prescription" is defined in Va. Code § 54.1-3401: "an order for drugs or medical supplies, written or signed or transmitted by word of mouth, telephone, telegraph, or other means of communication to a pharmacist by a duly licensed physician, dentist, veterinarian, or other practitioner authorized by law to prescribe and administer such drugs or medical supplies."

The phrase "new prescription" is not defined in § 54.1-3319 or anywhere else in Title 54.1, and the Board of Pharmacy's regulations at 18 Va. Admin. Code § 110-20 do not define it either. With no statutory or regulatory definition available, the AG applied standard Virginia statutory construction rules. Ellis v. Commonwealth, 70 Va. App. 385 (2019), and Eley v. Commonwealth, 70 Va. App. 158 (2019), confirm that when a term is undefined, courts apply its plain and ordinary meaning. Webster's defines "new" as "being other than the former or old," which the AG concluded captures a script with a different date even if nothing else has changed.

Citations and references

Statutes and regulations:

• Va. Code § 54.1-3319 (Counseling by pharmacists)
• Va. Code § 54.1-3401 (Definitions, including "prescription")
• 18 Va. Admin. Code § 110-20 (Board of Pharmacy regulations)

Cases:

• Ellis v. Commonwealth, 70 Va. App. 385 (2019) (Virginia Court of Appeals; plain-and-ordinary-meaning rule)
• Eley v. Commonwealth, 70 Va. App. 158 (2019) (Virginia Court of Appeals; plain-and-ordinary-meaning rule)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/20-005-Wyatt-Opinion-issued.pdf

Original opinion text

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

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

July 9, 2021

The Honorable Scott A. Wyatt
Member, House of Delegates
Post Office Box 365
Mechanicsville, Virginia 23111

Dear Delegate Wyatt:

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 a subsequent prescription for the same medication without a change in dose, directions, or drug formulation is a "new prescription" under § 54.1-3319 of the Code of Virginia for which a pharmacist must offer counseling.

Applicable Law and Discussion

Section 54.1-3319(B) provides that "[a] pharmacist shall offer to counsel any person who presents a new prescription for filling." Another provision of the Code of Virginia defines "prescription" as "an order for drugs or medical supplies, written or signed or transmitted by word of mouth, telephone, telegraph, or other means of communication to a pharmacist by a duly licensed physician, dentist, veterinarian, or other practitioner authorized by law to prescribe and administer such drugs or medical supplies." The term "new prescription," however, is not defined in § 54.1-3319 or elsewhere within Title 54.1 of the Code of Virginia, nor has the Board of Pharmacy defined the term in its regulations.

Because there is currently no statutory or regulatory definition of "new prescription," I turn to the rules of statutory construction where the "plain and ordinary meaning" of the word "new" would apply. One definition of new is "being other than the former or old." By that definition, if any part of the prescription is "other than the former or old" prescription, then that prescription could reasonably be considered a "new prescription" under § 54.1-3319. If a prescription is written for the same medication without a change in dose, directions, or drug formulation, yet has a new date, it would be "other than the former or old" prescription and would constitute a "new prescription."

Conclusion

For the foregoing reasons, a prescription with a new date for the same medication without a change in dose, directions, or drug formulation is considered a "new prescription" under § 54.1-3319 of the Code of Virginia for which a pharmacist must offer counseling.

With kindest regards I am,

Very truly yours,

Mark R. Herring
Attorney General