STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
September 25, 1975
Mr. Harold Schuler, Secretary
Board of Pharmacy
Box 518
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-166
Exclusive contract rights of a nursing home pharmacy under the unit dose system
Dear Mr. Schuler:
You have requested an opinion from this office pertaining to the unit dose dispensing system and SDCL 34-12B. The questions you ask are:
1. Is the right granted by SDCL 34-12B-1 limited to patients in nursing homes which have no licensed pharmacy, but have retail drug stores provide prescription drugs to patients in the nursing home?
2. Does the right granted by SDCL 34-12B-1 travel with a patient wherever he is located, such as nursing homes and hospitals?
3. Does the right granted by SDCL 34-12B-1 travel with a person who is not in a hospital or nursing home, but is purchasing prescription drugs from any licensed pharmacy in South Dakota?
4. If a patient in a nursing home has the right of having his prescription filled at the pharmacy of his choice, does that patient still have that right when a nursing home and pharmacy enter into an exclusive contract to provide patient medication under a "unit dose" system in accordance with the rules passed by the State Board of Pharmacy?
SDCL 34-12B-1 provides:
Any person shall have the right and privilege of having his prescription filled at the pharmacy or by the pharmacist of his choice.
SDCL 34-12B-2 provides
It shall be unlawful for any pharmacy, pharmacist, nursing home, or nursing home administrator, to contract, agree or to arrange for the exclusive right of a pharmacy or pharmacist to furnish drugs and medicines to residents or patients of a nursing home, except in nursing homes which are owned or operated by a licensed hospital, nursing homes which maintain a licensed pharmacy department and nursing homes which provide patient medication under a "unit dose" system in accordance with rules and regulations established by the state board of pharmacy.
The questions you raise essentially involve an analysis of the provisions of SDCL 34-12B-l and 34-12B-2. The general provision of SDCL 34-12B-l is, in my opinion, a statement by the Legislature of a general policy. SDCL 34-12B-2 provides for certain exceptions to this general policy, in situations where a nursing home is owned or operated by a licensed hospital, where a nursing home maintains a licensed pharmacy department, and where a nursing home provides patient medication under a unit dose system. In these situations, the Legislature recognizes exceptions to the general principle established in SDCL 34-12B-l.
With respect to your first question, it is my opinion that the right granted by SDCL 34-12B-l is a right granted to all people of the State of South Dakota. SDCL 34-12B-2, however, provides for situations in which there is an exception to this general right. Individuals who enter nursing homes, which meet the criteria of SDCL 34-12B-2, in effect are required by statute to deal exclusively with the pharmacy or pharmacist who has contracted for the exclusive right to serve the nursing home residents.
In view of the above comments, no additional answer is necessary for questions Nos. 2 and 3.
With respect to question No.4, the above analysis indicates my view here that there is no continuing right pursuant to SDCL 34-12B-l once an individual enters a nursing home which meets the criteria established by SDCL 34-12B-2.
I am not sure that the Legislature fully intended to put such a limitation on the general public. However, in view of the clear and concise language in the statutes, I am compelled to interpret the law as set forth in this opinion.
Respectfully submitted,
William Janklow
Attorney General
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