August 17, 1978

Sister Vincent Fuller, Executive Secretary 
South Dakota Board of Nursing 
304 South Phillips Avenue, Suite 205 
Sioux Falls, South Dakota 57102

Official Opinion No. 78-34

Authorization of nurse practitioners to prescribe controlled substances

Dear Sister Vincent:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

Under SDCL 36-9-1.1, the South Dakota Board of Nursing is denoted as the regulatory authority to carry out the policy and intent of Chapter 36-9 [of the South Dakota Codified Laws].  The Legislature recognized that there presently exists some overlapping of functions between the fields of medicine and nursing.  The Legislature also recognized the need for sharing of functions within organized health care systems.  Pursuant to this chapter of the South Dakota Laws, and specifically SDCL 36-9-21, the South Dakota Board of Nursing adopted administrative rules to carry out the intent and purpose of the Act.  1974 ARSD (1977 Cum. Supp.) 20:48. 
    
By SDCL 36-9, two categories of nurses are specifically defined:  the registered nurse, 36-9-3, and the licensed practical nurse, 36-9-4.  By the administrative rules adopted by the Board of Nursing (see the last paragraph of 36-9-3), the position of a certified nurse practitioner is also developed and defined.  ARSD 20:48:05:03.  In establishing the procedure for becoming a certified nurse practitioner, the Board of Nursing has relied on SDCL 36-9-1.1, which were the findings, policy, and intent of the South Dakota Legislature. 
    
The Board now wishes to establish a scope of the practice of the certified nurse practitioner pursuant to ARSD 20:48:05:04.  As part of the scope, the Board seeks to permit the certified nurse practitioner to prescribe medication in certain circumstances. 
    
However, the Board of Nursing is cognizant of a problem that exists pursuant to SDCL 36-11-2(11).  This chapter of the Code deals with pharmacies and pharmacists and purports to allow only authorized physicians, dentists, podiatrists and veterinarians to prescribed drugs and medicine. The Legislature has authorized other individuals not listed in 36-11-2(11) to prescribe drugs and medicines.  For example, under SDCL 36-4A-22(3) physicians' assistants are authorized to prescribe medication under certain circumstances.  The Board of Nursing feels that pursuant to the appropriate provisions of 36-9 that authorized certified nurse practitioners are also authorized to prescribe drugs and medicine under appropriate guidelines from the Board.

Based upon the above facts you ask the following questions:

QUESTIONS: 

1.  May the Board of Nursing adopt administrative rules authorizing the certified nurse practitioner to prescribe drugs or medicines under certain circumstances, despite the existence of SDCL 36-11-2(11)? 
    
2.  If the answer to question “a” is in the affirmative, what is the limitation, if any, upon the drugs or medicines which could be prescribed by the certified nurse practitioner?

IN RE QUESTION NO. 1:

In response to your first question, I would refer you to the case of Affiliated Distiller's Brands Corporation v. Gillis, 81 S.D. 44, 130 N.W.2d 597, 599 (1964).  In this case our South Dakota Supreme Court said that an expressed legislative will is a fundamental requirement for valid administrative rule making.  (See Attorney General's Checklist and Guidelines for Passing Rules Under South Dakota's Administrative Procedures Act, SDCL 1-26.)  SDCL 1-26-6.2 requires the agency promulgating rules to cite its general authority to promulgate rules and the specific statute being implemented by the rule. 
    
The code counsel shall prescribe a uniform style in which rules shall be prepared and the standard form to be used in filing rules pursuant to this chapter.  Such form shall contain a provision for a reference to be made by the agency for each rule proposed by it, citing their general authority to promulgate rules and then refer to the section, subdivision, or subsection of statute which the rule is intended to implement, and direct the agency to identify prior rules amended or repealed.

Also, as you note in your facts, specific legislation was necessary in 1973 to authorize physician's assistants to prescribe medication in certain circumstances. 
    
36-4A-22(3).  Make a tentative medical diagnosis and institute therapy or referral; to prescribe medication for symptoms and temporary pain relief; to treat common childhood diseases; to assist in the follow-up treatment of geriatric and psychiatric disorders referred by the physicians;

In 1976 when the Legislature revised the nurses licensing law no similar express provision was made authorizing nurses to prescribe medication.

In view of the Affiliated Brands case, SDCL 1-26-6.2, and no express statutory authorized with recent legislative activity in the area, it is my opinion the Board is not authorized to promulgate a rule allowing nurse practitioners to prescribe medications.

IN RE QUESTION NO. 2:

In view of my answer to Question 1, it is not necessary to consider your second question.

Respectfully submitted,

William J. Janklow
Attorney General

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