STATE OF VERMONT
BOARD OF PHARMACY
Statement of Guidance following Enactment of Act 75
The Vermont Board of Pharmacy has been asked how licensees are to comply with the provisions of Act 75 which became law on July 1, 2013. The Board declines to issue a declaratory judgment regarding Act 75 as it may affect licensees. Rather, the Board feels it appropriate to issue this document as an aid to licensees. The Board will consult with the legislature to determine whether any legislative or rule change is needed to clarify the laws to further the intent of the legislature as it addresses the challenge of drug abuse in Vermont.
In 2013 the General Assembly passed and the governor signed Act 75 which amends several statutes. As stated in the preamble, “This act is intended to provide a comprehensive approach to combating opioid addiction and methamphetamine abuse in Vermont through strategies that address prevention, treatment, and recovery, and increase community safety by reducing drug-related crime.” The Act is fifty four pages in length. Among the specific statutes amended are: parts of Chapter 84 of Title 18: 18 V.S.A. §§ 4201(26), 4202, a new provision 18 V.S.A. § 4215b, parts of 18 V.S.A. §§ 4218, 4282, 4283, 4284, 4287, 4288, 4289, 4290.
Of importance here are parts of 18 V.S.A. § 4201(26)(newly enacted), 18 V.S.A. § 4215(a)(existing before 2013), and 18 V.S.A. 4215b(newly enacted). All are part of Chapter 84 of Title 18, “Possession and Control of Regulated Drugs.”
18 V.S.A. § 4201(26) “‘Prescription’ means an order for a regulated drug made by a physician, physician assistant, advanced practice registered nurse, dentist, or veterinarian licensed under this chapter to prescribe such a drug which shall be in writing except as otherwise specified in this subdivision. Prescriptions for such drugs shall be made to the order of an individual patient, dated as of the day of issue and signed by the prescriber. The prescription shall bear the full name, address, and date of birth of the patient, or if the patient is an animal, the name and address of the owner of the animal and the species of the animal. Such prescription shall also bear the full name, address, and registry number of the prescriber and, unless electronically prescribed, shall be written with ink, indelible pencil, or typewriter; if typewritten, it shall be signed by the prescriber. A written or typewritten prescription for a controlled substance, as defined in 21 C.F.R. Part 1308, shall contain the quantity of the drug written both in numeric and word form.” (emphasis added).
18 V.S.A. § 4215(a) “A duly licensed pharmacist, in good faith and in the course of professional practice, may sell and dispense regulated drugs to any person upon a written prescription or oral prescription which is reduced promptly to writing by the pharmacist by an individual authorized by law to prescribe and administer prescription drugs in the course of professional practice. The written prescription shall be dated and signed by the person prescribing or, if an oral prescription by the pharmacist on the day when written, and bearing the full name and date of birth of the patient for whom the drug is prescribed, and the full name of the person prescribing. If the prescription is for an animal, the prescription shall state the species of animal for which the drug is prescribed and the full name and address of the owner of the animal. A prescription shall not be refilled unless refilling is authorized by the practitioner on the original prescription or by the original oral order.” (Emphasis added).
18 V.S.A. § 4215b Identification “Only a patient for whom a prescription was written, the owner of an animal for which a prescription was written, or a bona fide representative of the patient or animal owner, as defined by the Board of Pharmacy by rule after consultation with the Commissioner of Health, may pick up a prescription for a Schedule II, III, or IV controlled substance. Prior to dispensing a prescription for a Schedule II, III, or IV controlled substance, a pharmacist shall require the individual receiving the drug to provide a signature and show valid and current government-issued photographic identification as evidence that the individual is the patient for whom the prescription was written, the owner of the animal for which the prescription was written, or the bona fide representative of the patient or animal owner. If the individual does not have valid, current government-issued photographic identification, the pharmacist may request alternative evidence of the individual’s identity, as appropriate.”
The Board has considered four questions about ACT 75.
1) Does the new language in 18 V.S.A. § 4201(26) bar taking oral telephone prescriptions?
2) Does 18 V.S.A. § 4201 and the statutory scheme of Chapter 84 permit the pharmacist to add the patient’s date of birth if the prescriber has not included it on the prescription?
3) May a prescription be filled if it does not contain both a numeric and written number for the quantity of the drug prescribed, e.g. “(35) thirty-five?”
4) What “alternative evidence of an individual’s identity” is permitted?
Our conclusions are based on a review of the new provisions and existing statutes, the Controlled Substances Act, the Administrative Rules of the Board of Pharmacy, and a letter from the Senate Committee on Health and Welfare. Our goal is to effectuate the intent of the Legislature.
The Board’s position:
1) Does 18 V.S.A. § 4201(26) bar oral telephone prescriptions? A: No. Nothing in the legislation or in the memorandum indicates that the legislature directly or by implication, intended to repeal the oral prescription provisions of 18 V.S.A. § 4215. Nor is there any evidence that the legislature wished to contravene 21 CFR §1306.21 which is the federal law permitting oral prescriptions. We note that federal regulations do permit oral prescriptions of Schedule II drugs in emergency situations. 21 C.F.R. 1306.11(d). 18 V.S.A. § 4201(26) does not indicate a desire to contravene the federal law either. This interpretation is consistent with Pharmacy Board Administrative Rules 9.8 which was approved by the Legislative Committee on Administrative Rules in 2009. In such circumstances, and absent evidence of other possible violative conduct, the Board will not recommend for prosecution a case based on a pharmacist accepting an oral prescription, as it was permitted before July 1, 2013.
2) Does 18 V.S.A. § 4201(26) permit the pharmacist to add the patient’s date of birth if the prescriber has not included it on the prescription? A: Yes. Consistent with our interpretation of the preceding question, we conclude yes. § (26) requires a written prescription. Under § 4215 the pharmacist is permitted to write the prescription which must include a date of birth when the prescription is initiated orally. A consistent reading of the statutes permits the pharmacist to add the patient’s date of birth to a written prescription. In such circumstances, and absent evidence of other possible violative conduct, the Board will not recommend for prosecution a case where a pharmacist added to a prescription the patient’s date of birth properly obtained in good faith.
3) May a prescription be filled if it does not contain both a numeric and written number of pills, e.g. “thirty-five (35)?” A: Qualified yes. Prescriptions for all Schedule II, III and IV drugs which do not contain both the numeric and written amount of the prescription, e.g. “35 (thirty-five)” may be filled, but only as follows:
- The pharmacist verifies with the prescriber the amount to be dispensed under the prescription;
- If the prescriber is not immediately available, the pharmacist may dispense an emergency amount. See, 21 C.F.R. § 1306.11(d). See also, 23 CFR § 1306.13(a) (partial filling) and 21 CFR § 1306.23 (partial filling for Schedule III, IV, and V drugs).
- Once the pharmacist is able to verify the correct quantity to be dispensed and documents on the hard copy of the prescription the date, time, and person confirming the quantity, the remainder of the prescription may be dispensed to the patient.
In such circumstances, and absent evidence of other possible violative conduct, the Board will not recommend for prosecution a case based on a pharmacist properly completing the prescription amount.
4) What forms of “alternative evidence of an individual’s identity” are permitted? A: It depends. Please note that the new 18 V.S.A. § 4215b requires the patient to provide a government issued photo identification. Only when the patient does not have a government-issued photo identification is the pharmacist permitted to consider alternative evidence of the patient’s identity. “Alternative evidence” is not defined by the legislature or the Board by rule. What constitutes “acceptable alternative evidence” is left to the sound discretion and judgment of licensed pharmacists. Personal knowledge of a patient’s identity would be one acceptable type of alternative evidence.
As in any professional activity, the licensee must always exercise his or her independent professional judgment to ensure that prescriptions filled are valid.
Vermont Board of Pharmacy