November 9, 1983 

Mr. Gary F. Colwill 
Hughes County Deputy State's Attorney 
Post Office Box 1174 
Pierre, South Dakota 57501

Official Opinion No. 83-41

Prescription Authority of Podiatrists

Dear Mr. Colwill:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Podiatrists are licensed practitioners of the healing arts, under SDCL 36-8, whose practice is limited to the human foot.  They can treat the human foot in all particulars, including surgery when required.

Based on the above facts you have asked the following question:

QUESTION: 

Are podiatrists authorized under existing South Dakota statutes to prescribe Schedule II through IV controlled substances for their patients?

SDCL 34-20B-31 provides for the registration of professionals to prescribe and dispense controlled substances in the following manner (emphasis added): 

Doctors of medicine, osteopathy, physician's assistants, dentistry, podiatry, optometry, or veterinary medicine, and pharmacists licensed or certified to practice their profession, and licensed pharmacies, in this state shall be deemed to have complied with the registration requirements of §  34-20B-29, without the payment of an additional fee.

SDCL 34-20B-37 provides that 'practitioners shall be registered to dispense substances in Schedules II through IV if they are authorized to dispense under the law of this state.'  Further, 'practitioner' is defined in SDCL 34-20B-1(17)  to include doctors of podiatry licensed to practice their profession.

The plain reading of these statutes leads to the conclusion that podiatrists are authorized to dispense controlled substances under the laws of this state.

Although a 1956 official opinion of this office (1955-56 Attorney General Report, p. 43) stated that Chiropodists (podiatrists) could not dispense drugs, the reason for this conclusion was the fact that they were not included within the definition of 'physician' in SDC 22.1301(2).  This section, however, was repealed and superseded by the provisions of the South Dakota Drug and Substances Control Act, SDCL 34-20B, in 1970.  As is set out above, the provisions of SDCL 34-20B clearly authorize podiatrists to dispense controlled substances.

Therefore, it is my opinion that the answer to your question is YES, podiatrists are authorized under existing South Dakota statutes to prescribe and dispense Schedule II through IV controlled substances for their patients, notwithstanding any prior official opinion of this office to the contrary.

Respectfully submitted,

Mark V. Meierhenry
Attorney General