Request By:
C. William Schmidt, Executive Director
Kentucky Board of Medical Licensure
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Statutes construed: KRS 311.858(4), KRS 315.040(2)
Opinion of the Attorney General
The Kentucky Board of Medical Licensure is responsible for licensing and regulating physician assistants under KRS 311.842. C. William Schmidt, Executive Director of the Board, has requested an opinion of this office on the following question: "Under their present statutory authority, may licensed Physician Assistants 'dispense' or 'distribute' non-scheduled prescription medications to patients they see in their practice?"
The factual situation concerns a physician who seeks to establish an in-office pharmacy in which a licensed physician assistant, acting under medical supervision pursuant to KRS 311.854, would dispense or distribute non-scheduled prescription medications to patients of the practice. As we are unaware of any prior decisions or opinions on this question, the issue is one of first impression.
Physician assistants practice under the supervision of a licensed physician as set forth in KRS 311.856. The authority of physician assistants to provide medications to patients is set out in KRS 311.858(4):
A physician assistant may prescribe and administer all nonscheduled legend drugs and medical devices as delegated by the supervising physician. A physician assistant who is delegated prescribing authority may request, receive, and distribute professional sample drugs to patients.
That subsection makes no mention of authority to "dispense" medications, but gives authority to prescribe and administer them.
The words of a statute must be given their plain meaning unless to do so would lead to an absurd result. City of Covington v. Kenton County, 149 S.W.3d 358, 362 (Ky. 2004). The question, therefore, is whether the authority to dispense must be regarded as implicit in the authority to "prescribe" and "administer" medications, or whether there exists any reasonable basis upon which the legislature could have intended to withhold dispensing authority from physician assistants. The word "prescribe" is clear in this context as signifying the writing or other issuance of a prescription for a drug or device. "Administer" is defined by KRS 315.010(1) as "the direct application of a drug to a patient or research subject by injection, inhalation, or ingestion, whether topically or by any other means."
The relevant statutory definitions of "dispense" are found in KRS 217.015(9):
"Dispense" means to deliver a drug or device to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling or compounding necessary to prepare the substance for that delivery.
and KRS 315.010(8):
"Dispense" means to deliver one (1) or more doses of a prescription drug in a suitable container, appropriately labeled for subsequent administration to or use by a patient or other individual entitled to receive the prescription drug.
Chapter 217 regulates non-scheduled prescription medications, while Chapter 315 governs pharmacists and pharmacies.
These definitions establish that "dispensing" incorporates elements that are not included in the scope of prescribing or administering drugs. Specifically, dispensing includes supplying the necessary packaging and labeling to enable the patient to use the medication properly. Accordingly, there is no compelling cause to read dispensing authority into KRS 311.858(4) when it does not appear there explicitly.
Furthermore, KRS 315.040(2) contains the following provision applying to physicians only:
Nothing in this chapter shall interfere with the professional activities of any licensed practicing physician, or prevent the physician from keeping any drug or medicine that he or she may need in his or her practice, from compounding the physician's own medications, or from dispensing or supplying to patients any article that seems proper to the physician.
(Emphasis added.) There is no parallel provision for physician assistants. In construing the statutes, we must take note of where this language is used by the legislature in contrast to where it is not used. Cf. Palmer v. Com., 3 S.W.3d 763, 764-65 (Ky. App. 1999). Had the General Assembly wished to add physician assistants to the exception made for "licensed practicing physician[s]," it could have done so by using the word "practitioner, " which is defined in KRS 315.010(20) and KRS 217.015(35) as including "physician assistants when administering or prescribing pharmaceutical agents as authorized in KRS 311.858." Since it did not, we conclude that physician assistants have not been given the statutory authority to "dispense" medications.
As for the question of physician assistants' authority to "distribute" drugs, neither Chapter 217 nor Chapter 311 of the Kentucky Revised Statutes contains a definition of "distribute. " KRS 218A.010(10), which applies solely to controlled substances but is somewhat analogous, does define this term: "'Distribute' means to deliver other than by administering or dispensing a controlled substance." In any event, the only reference to the authority of a physician assistant to "distribute" medications is the limited reference found in KRS 311.858(4), which states that a physician assistant may "distribute professional sample drugs to patients. " From this explicit language and the principle that expressio unius est exclusio alterius, or the mention of one thing excludes another, Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321 (1943), we conclude that the distribution of professional sample drugs to patients is the full extent of a physician assistant's authority to "distribute" medications under KRS 311.858(4).