STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5630

January 22, 1980

PUBLIC HEALTH CODE:

Prescription of drugs

DRUGS AND MEDICINES:

Prescriptions by nurse or physician's assistant

NURSES:

Prescription of drugs

PHYSICIAN'S ASSISTANTS:

Prescription of drugs

PHYSICIANS AND SURGEONS:

Prescription of drugs

WORDS AND PHRASES:

'Delegation'; 'supervision'

Neither a nurse nor a physician's assistant may prescribe drugs independently, although a nurse or a physician's assistant may do so pursuant to proper delegation from a licensed physician in compliance with pertinent statutory requirements.

The delegation of authority from a licensed physician to a nurse or a physician's assistant to prescribe drugs must be subject to the supervision of the physician and must comport with rules detailing procedures and protocol for delegating the prescribing of drugs. Until rules are promulgated by the boards, no physician may delegate the prescribing of a controlled substance to a physician's assistant.

Honorable Ernest W. Nash

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

The delegation of unlimited authority to prescribe drugs is deemed to be an authorization to determine which drugs and the amount of such drugs is to be prescribed to any patient under any circumstances without further guidance from the physician.

A similar question was addressed in OAG 1977-1978, No 5220, p ___ (August 31, 1977), and it was concluded therein that, under the Physician's Assistants Act, 1976 PA 420; MCLA 338.1951 et seq; MSA 14.718(11) et seq:

OAG 1977-1978, No 5220, supra, further concluded that a nurse licensed pursuant to 1967 PA 149; MCLA 338.1151 et seq; MSA 14.694(1) et seq, may properly recognize prescriptions and orders of a physician's assistant in the same manner and to the same degree as if issued directly by a physician.

The various acts relating to licensure of doctors of medicine, doctors of osteopathic medicine and surgery, physician's assistants and nurses have been repealed and replaced ⁽¹⁾ by the Public Health Code, 1978 PA 368; MCLA 333.1101 et seq; MSA 14.15(1101) et seq, which regulates all licensed health professionals. However, the provisions of the repealed statutes relied upon in OAG 1977-1978, No 5220, supra, were substantially re-enacted in 1978 PA 368, supra.

As noted in OAG 1977-1978, No 5220, supra, the answer therein depended upon the terms 'medical care service' and 'supervision,' and these terms were re-enacted in 1978 PA 368, supra, Sec. 17001(a) and Sec. 16109(2), respectively, without significant change. Moreover, the specific authority of a physician to delegate the prescribing of a drug remains unchanged. 1976 PA 420, supra, Sec. 17(3), was re-enacted as 1978 PA 368, supra, Sec. 17048 and Sec. 17076(3). 1978 PA 368, Sec. 17048, supra, authorizes the boards of medicine and osteopathic medicine and surgery to promulgate rules governing the delegation of prescription writing to a physician's assistant, and 1978 PA 368, Sec. 17076(3), supra, allows physician's assistants to prescribe 'as a delegated act,' but only 'in accordance with procedures and protocol for the prescription established by the boards in rule. . . .' Like the previous 1976 PA 420, Sec. 17(3), supra, 1978 PA 368, supra, forbids the delegation of prescribing controlled substances until such time as rules have been promulgated, and requires that a delegated prescription bear the name of the supervising physician.

Before turning to your question, it should be noted that neither the repealed acts relating to nurses or physician's assistants, nor the recently enacted 1978 PA 368, supra, allow a physician's assistant or registered nurse to prescribe drugs independently. A nurse or physician's assistant may do so only pursuant to a proper delegation from a licensed physician, in compliance with pertinent statutory requirements.

Addressing first the question of physician's assistants, as previously noted specific provisions of 1978 PA 368, supra, regulate the delegation of the prescription writing function to physician's assistants. 1978 PA 368, Sec. 17076(3), supra, states:

The prescribing of drugs by physician's assistants may only occur upon proper 'delegation' by a supervising physician approved under 1978 PA 368, supra, Sec. 17040 or Sec. 17540. 1978 PA 368, supra, Sec. 16104(1), defines 'delegation' as:

As stated in OAG 1977-1978, No 5220, supra, 'delegation' connotes a conferring of powers on the recipient where the recipient would otherwise be without authority to perform the delegated act.

A delegation to a physician's assistant is not without limitation. Like all other aspects of a physician's assistant's practice, the writing of prescriptions is to be performed only under the supervision of a doctor of medicine or a doctor of osteopathic medicine and surgery. This supervision is defined by 1978 PA 368, supra, Sec. 16109(2):

The provision of predetermined procedures and protocol includes the required procedures and protocol mentioned in 1978 PA 368, supra, Sec. 16408. This section allows the boards, in the course of rule promulgation, to preclude delegation of specific drugs or classes of drugs from the prescription writing function.

Summarizing the pertinent provisions of 1978 PA 368, supra, a doctor of medicine or a doctor of osteopathic medicine and surgery may delegate the authority to prescribe to a physician's assistant. However, the delegation must be subject to the supervision of the physician and must comport with rules detailing procedures and protocol for delegating the prescribing of drugs. Until rules are promulgated by the boards, no physician may delegate the prescribing of a controlled substance. Finally, in carrying out any delegated act of prescribing, the physician's assistant must identify the supervising physician.

The answer to your question depends upon the definition of the term 'delegation' and specifically the phrase 'selected acts, tasks, and functions.' The phrase may be read as permitting the delegation of the act, task or function of prescribing and, if so, it would follow that the physician's assistant could perform the act, task or function of prescribing without limitation. Alternatively, the phrase may be construed to limit delegation to each individual act, task or function authorized by a physician. Under this view, a physician could not grant unlimited authority to a physician's assistant to prescribe drugs. I am guided by the principle of statutory construction that a clause being interpreted shall be read in connection with other pertinent provisions, and a meaning shall be given thereto consistent with the general purpose sought to be accomplished. Robert Tobacco Co v Michigan Department of Revenue, 322 Mich 519; 34 NW2d 54 (1948); Simmons v Board of Education of Marlette Community Schools, 73 Mich App 1; 250 NW2d 777 (1976).

Applying this rule of statutory construction, the act read as a whole evinces the legislative intent to limit the ability of a physician to delegate the prescribing function to a physician's assistant. 1978 PA 368, Sec. 17048, supra, expressly authorizes the boards of medicine and osteopathic medicine and surgery to limit, by rule, a physician's assistant's delegated prescribing powers both as to drugs and classes of drugs and as to adherence to procedures and protocols. A parallel prohibition contained in 1978 PA 368, Sec. 17076(3), supra, precludes physician's assistants from prescribing outside of a proper delegation in accordance with the boards' rules. The concept of supervision contained in 1978 PA 368, Sec. 16109(2), supra, demonstrates a legislative intent that a physician's assistant work closely with and under the continual scrutiny of a physician. Finally, whenever delegated prescribing does occur, the prescription shall identify the name of the supervising physician.

Therefore, it is my opinion that a physician may not delegate unlimited authority to a physician's assistant to prescribe drugs.

While specific provisions of 1978 PA 368, supra, govern delegated prescription writing by physician's assistants, exercise of this function by registered professional nurses is governed by the general provisions for delegation of 1978 PA 368, supra. 1978 PA 368, supra, Sec. 16215, states in pertinent part:

The response to this question likewise depends upon the interpretation of the phrase 'selected acts, tasks, or functions' contained in the definition of delegation in 1978 PA 368, Sec. 16104(1), supra. The analysis made in regard to physician's assistants is equally applicable since the section in question, 1978 PA 368, Sec. 16215, supra, contains the language 'selected acts, tasks, or functions,' and the delegated act is subject to the same supervision as discussed above in relation to physician's assistants.

Of even greater significance is the second sentence of 1978 PA 368, supra, Sec. 16215(1), which provides that an act, task or function shall not be delegated if the education, skill and judgment of a physician is required under standards of acceptable and prevailing practice. By this section, the legislature clearly envisioned certain limitations on the authority of a physician to delegate the prescribing of drugs. Moreover, 1978 PA 368, supra, Sec. 16215(2) and (3), provide that any of the health professional licensing boards may promulgate rules to restrict, prohibit or require specific conditions of supervision over any delegated act, task or function.

Therefore, in my opinion, the legislature has permitted a physician to delegate the prescribing of a drug to a licensed professional nurse. However, the particular delegation may not, under standards of acceptable and prevailing practice, require the level of education, skill and judgment required of a licensee under that article. In addition, the licensing boards may promulgate rules to prohibit, restrict or require closer conditions of supervision with regard to the delegating of prescribing drugs by a physician to a licensed professional nurse.

Frank J. Kelley