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Nurses and Prescriptive Authority: A Legal and Economic Analysis

Published online by Cambridge University Press:  24 February 2021

Elizabeth Harrison Hadley
Elizabeth Harrison Hadley*
Affiliation:
1981, University of California at Berkeley (Bolt Hall); 1989, Yale University
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Abstract

This article identifies twenty-six jurisdictions where nurses have been granted legal authority to prescribe drugs. The jurisdictions are divided into two groups: those where nurses have authority to prescribe without the supervision of a physician and can therefore function as substitutes for physicians; and those where nurses may prescribe only in collaboration with a supervising physician, and are thereby limited to functioning in a complementary role.

The issue of prescriptive authority is discussed within the context of regulating the practice of nursing, and more generally, the health care professions. The article reviews the history of Nurse Practice Acts, focusing upon the Connecticut statute and the economic implications of this statutory approach. It is argued that the law should promote the use of nurses as substitutes for physicians whenever appropriate.

The article concludes with a two-part proposal for reform: an “authorized prescriber” statute requiring health care professionals desiring to prescribe drugs to pass an examination testing their knowledge of pharmacology and drug therapy; and the elimination of the “unauthorized practice” provisions of the statutes regulating all health care professions. The proposal promotes economic efficiency by eliminating artificial constraints on the substitutability of labor in the provision of health services.

Type
Articles
Information
American Journal of Law & Medicine , Volume 15 , Issue 2-3 , 1989 , pp. 245 - 299
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1989

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Footnotes

†

This article developed out of an essay submitted to the faculty of the Department of Epidemiology and Public Health of Yale University in candidacy for the degree of Master of Public Health.

References

1 The request for the opinion came from Connecticut's Department of Consumer Protection. The request was withdrawn before a formal opinion was released, and a task force was established to study the question and propose legislation. See infra notes 35-67 and accompanying text (discussing the history of Connecticut's Nurse Practice Act).

2 See infra pp. 417-40 and notes 68-178 (listing the exact states that have addressed this question, together with citations to the relevant statutes and regulations).

3 See infra notes 121-52 and accompanying text (discussing the California model).

4 Defining the term “prescriptive authority” is a challenge. “To prescribe” has been defined as, “[t]o give directions, either orally or in writing, for the preparation and administration of a remedy to be used in the treatment of any disease.” Stedman's Medical Dictionary 1136 (4th ed. 1976). In many states where nurses have obtained legal authority to prescribe, they do not have the autonomy and professional discretion to choose drugs that is implied by this definition. Prescriptive authority in most states is limited to certain nurses, certain drugs, certain settings and even certain patients. An affirmative answer to the question: “Do any nurses have authority to prescribe drugs?” means different things in different states. The extent of a nurse's independent authority can only be determined by careful examination of the statutes and regulations for each state. Even then, different nurses in the same state may function very differently depending on their agreement with their supervising physician. Thus the language of the relevant state statutes and regulations does not always make clear what it is that nurses have been authorized to do.

5 In this article, “jurisdiction” and “state” are used interchangeably. Technically “jurisdiction” is the appropriate term because the list of prescriptive authority states includes the District of Columbia.

6 See infra notes 81-178 and accompanying text (discussing in detail the forms of supervision imposed by statute and regulation).

7 See infra notes 188-99 and accompanying text (discussing nurse practice statutes).

8 There is an extensive literature comparing the quality of care provided by nurse practitioners and physician's assistants — the so-called “physician extenders” — with the care provided by physicians. See, e.g., OFFICE OF Technology Assessment, U.S. Congress, Health Technology Case Study NO. 37, Nurse Practitioners, Physician Assistants, and Certified Nurse-Midwives: A Policy Analysis, Chapter 2: Quality of Care (Dec. 1986); Glenn, & Goldman, , Task Delegation to Physician Extenders — Some Comparisons, 66 Am. J. Pub. Health 64 (Jan. 1976)CrossRefGoogle Scholar; Sox, , Quality of Patient Care by Nurse Practitioners and Physician's Assistants: A Ten-Year Perspective, 91 Annals Internal Med. 459 (Sept. 1979)CrossRefGoogle Scholar; Ramsey, , McKenzie, & Fish, , Physicians and Nurse Practitioners: Do They Provide Equivalent Care? 72 Am. J. Pub. Health 55 (Jan. 1982)CrossRefGoogle Scholar.

9 The United States Supreme Court upheld the constitutionality of the West Virginia Medical Practice Act in Dent v. West Virginia, 129 U.S. 114 (1889). The tenth amendment to the United States Constitution, provides that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const, amend. X. The authority reserved to the states by this amendment authorizes them to take “police power” or regulatory measures to protect the public health, welfare and safety. See Black's Law Dictionary 1041 (5th ed. 1979). Beginning with Dent, the courts have upheld consistently professional licensing laws as a legitimate exercise of states’ police powers.

10 Dent, 129 U.S. at 122-23; Institute of Med., Committee to Study the Role of Allied Health Personnel, Allied Health Services: Avoiding Crisis 235, 241, 253 (1989).

11 See, e.g., Conn. Gen. Stat. §§ 20-87 to 102 (1989).

12 See, e.g., id. at §§ 20-99.

13 Bullough, , The Current Phase in the Development of Nurse Practice Acts, 28 St. Louis U.L.J. 365, 366 (1984)Google Scholar; see also Bullough, The First Two Phases in Nursing Licensure, in The Law and the Expanding Nursing Role 23-35 (B. Bullough ed. 1980); Bullough, The Third Phase in Nursing Licensure: The Current Nurse Practice Acts in The Law and the Expanding Nursing Role, supra, at 47-66. Bonnie Bullough is the leading commentator on the history of nursing legislation and the author is indebted to her for the publications cited above. See also Bullough, , The Law and the Expanding Nursing Role, 66 Am. J. Pub. Health 249 (Mar. 1976)CrossRefGoogle Scholar (summarizing the history of Nurse Practice Acts).

14 1903 N.C. Sess. Laws 359; Bullough, The First Two Phases of Nursing Licensure, in The Law and the Expanding Nursing Role, supra note 13, at 26.

15 Bullough, The First Two Phases of Nursing Licensure, in The Law and the Expanding Nursing Role, supra note 13, at 26-27.

16 1938 N.Y. Laws 472; Bullough, The First Two Phases of Nursing Licensure, in The Law and the Expanding Nursing Role, supra note 13, at 28. For a summary of the history of nursing licensure legislation in New York, see V. Driscoll, Legitimizing the Profession of Nursing: the Distinct Mission of the New York Stat. Nurses Association (1976).

17 Bullough, The First Two Phases of Nursing Licensure, in The Law and the Expanding Nursing Role, supra note 13, at 33; Bullough, The Third Phase in Nursing Licensure, in The Law and the Expanding Nursing Role, supra note 13, at 55.

18 Idaho Code § 54-1413(e) (1971); see Bullough, The First Two Phases of Nursing Licensure, in The Law and the Expanding Nursing Role, supra note 13, at 33; Bullough, The Third Phase in Nursing Licensure, in The Law and the Expanding Nursing Role, supra note 13, at 55.

19 The New York State Nurses Association had also tried to amend that state's practice act in 1971. A bill was passed which contained the word “diagnosis” but it was subsequently vetoed. In 1972, however, the New York Nurse Practice Act was amended to define “dianosis” as the “identification of and discrimination between physical and psychosocial signs and symptoms essential to the effective execution and management of a nursing regime. Such diagnostic privilege is distinct from a medical diagnosis.” New York State Education Law Op. Title 8, Article 139, § 6901 (1972); see Bullough, The Third Phase in Nursing Licensure, in The Law and the Expanding Nursing Role, supra note 13, at 57-60; V. Driscoll, supra note 16, at 58-66.

The struggle over the word “diagnosis” to define nursing practice is symbolic of the efforts of organized nursing to establish independence from the medical profession. Nursing's success in obtaining amendments to state practice acts that define diagnosing as part of the practice of nursing has had important legal and economic implications.

20 See P. Starr, the Social Transformation Of American Medicine 102-12 (1982).

21 See, e.g.. Conn. Gen. Stat. Ann. § 20-9 (West 1969 and Supp. 1989); N.C. Gen. Stat. § 90-18 (1985).

22 See, e.g., Conn. Gen. Stat. Ann. § 20-9 (West 1969 and Supp. 1989); N.C. Gen. Stat. § 90-18 (1985).

23 See supra notes 35, 67 (discussion of the supplement to 1939 Conn. Pub. Acts 158, § 992e).

24 Lipsey, R., Steiner, P. & Purvis, D., Economics 63 (8th ed. 1987)Google Scholar; Griffith, Nursing Practice: Substitute or Complement According to Economic Theory, Nursing Economics, Mar.- Apr. 1984, at 105, 108. The author is indebted to Hurdis Griffith for the clear and succinct analysis of the concept that nurses may function both as complements to, and substitutes for, physicians.

25 Griffith, supra note 24, at 108.

26 R. Lipsey, P. Steiner & D. Purvis, supra note 24, at 60.

27 Id. at 63.

28 Id.

29 Id. at 60-61.

30 Id.

31 Id. at 62-63.

32 Griffith, supra note 24, at 109-10.

33 Id. at 108.

34 See Driscoll, supra note 16, at 70. Driscoll argued that, as of 1976, the legitimization of the profession of nursing in New York had failed to be achieved, in part because of a denial of the intellectual component of nursing practice and because of the perception that nursing is an appendage of medicine rather than a separate profession.

35 See 1989 Conn. Acts 89-389 (Reg. Sess.).

36 1905 Conn. Pub. Acts 120.

37 The act was passed on June 6, 1905.

38 The 1905 enactment contained the exemption that “nothing in this act shall be held to apply to the acts of any person nursing the sick who does not represent himself or herself to be a registered nurse.” 1905 Conn. Pub. Acts 120, § 7. This phrase disappeared in a 1929 amendment to the Nurse Practice Act. See 1929 Conn. Pub. Acts 290, § 3, 4.

39 1905 Conn. Pub. Acts 120, § 1.

40 1905 Conn. Pub. Acts 120, § 5.

41 1907 Conn. Pub. Acts 198, § 2.

42 The statutory provision creating this board of appeal remained in the Connecticut NPA from 1907 to 1939. The 1918 version of this statutory provision accorded even more explicit power to the state medical societies to determine the membership of the appeal board: “The members of said board of appeal shall be appointed by said state medical societies for such term and in such manner as may be determined by said societies.” Conn. Gen. Stat. ch. 152, § 2893 (1939)-(1918 amendment); see also Conn. Gen. Stat. ch. 158, § 2794 (1939) (1930 amendment).

In 1935 the statute was amended to change the composition of the appeal board. The Connecticut Hospital Association was authorized to have a representative on the board, as were The Connecticut Medical Society and the Connecticut Homeopathic Medical Society. The Connecticut Eclectic Medical Association, however, was no longer represented. Conn. Gen. Stat. ch. 158, § 1135c (1939) (1935 amendment).

The statutory provision creating the board of appeal disappeared in the 1939 revision of the Connecticut NPA. a revision that repealed all prior versions of the NPA. See Conn. Gen. Stat. ch. 158 (1939).

43 S. Rev.Rby, Ordered to Care: the Dilemma of American Nursing 1850-1945 (1987).

44 1938 N.Y. Laws ch. 472, §§ 1374-1375, 1384.

45 Conn. Gen. Stat. ch. 158, §§ 992e - 1009e (1939 amendment). For the brief legislative history of House Bill No. 606, which was enacted as the 1939 revision of Connecticut's NPA. see Connecticut Joint Standing Comm. Hearings, Pub. Health & Safety Comm. Sess., §§ 97-102 (1939).

46 Conn. Gen. Stat. ch. 158, § 992e (1939 amendment).

47 See id. at § 1000e. Some of the exemptions contained in this section did not need to be articulated, because they described situations where no compensation would be paid.

48 Id.

49 The 1939 NPA provided that: “[N]o person shall practice nursing as defined in this chapter in this state unless registered or certified as herein provided.” Id. at § 1008e (emphasis added).

50 Prior versions of Connecticut's NPA had made it “unlawful… to practice professional nursing in this state as a registered nurse without having a certificate of registration.” 1905 Conn. Pub. Acts 120, § 7 (emphasis added); see also Conn. Gen. Stat. ch. 152, § 2895 (1939) (1918 amendment); 1929 Conn. Pub. Acts 290, §§ 3, 4; Conn. Gen. Stat. ch. 158, § 2796 (1939) (1930 amendment); Conn. Gen. Stat. ch. 158, § 1137c (1939) (1935 amendment).

The language of these prior versions of the statute protected use of the title by coupling the prohibition of the practice of nursing with the phrase “as a registered nurse.” By 1935 the forbidden titles included “trained, certified, graduate or registered nurse.” See Conn. Gen. Stat. ch. 158, § 1137c (1930) (1935 amendment).

The explicit exemption permitting a person to nurse the sick as long as she did not misrepresent herself as a registered nurse disappeared in a 1929 amendment to the NPA. See 1929 Conn. Pub. Acts 290, §§ 3, 4. Thus between 1929 and 1939 the statute's emphasis on protection of the title, as opposed to the practice of nursing, was not as unambiguous as in prior versions of the statute. But it was not until 1939, when the General Assembly first enacted a definition of the practice of nursing, that an explicit prohibition against unauthorized pratice, as well as against misuse of the title, could be legislated.

51 Conn. Gen. Stat. ch. 158, § 1001e (1939 amendment); but see id. at ch. 158, § 548g (1943 amendment).

52 Id. at ch. 158, § 1005e (1939 amendment); see also id. at ch. 213, § 2223s (1955 amendment); cf. id. at ch. 213, § 4434 (1949 amendment).

53 cf. id. at ch. 158, § 1004e (1939 amendment); id. at ch. 158, § 1135c (1935 amendment).

54 See B. Melosh, the Physician's Hand: Work Culture and Conflict in American Nursing 16-20 (1982) (discussing the attributes of the nursing profession).

55 1975 Conn. Acts 166, § 1 (emphasis added).

56 1989 Conn. Acts 389, § 1(b).

57 For a discussion of the laws in other complementary states, see infra notes 102-78 and accompanying text.

58 See infra notes 60-67 and accompanying text.

59 Conn. Gen. Stat. § 20-9 (1989).

60 Id.

61 1889-1901 Conn. Pub. Acts 158 (enacted 1893). The 1893 enactment repealed earlier legislation requiring the licensure of itinerant vendors who advertised to treat “disease or injury by any drug, nostrum, manipulation, or other expedient ….” See 1881 Conn. Pub. Acts 107; Conn. Gen. Stat. §§ 3006-3008 (1887-1888 amendments).

62 1889-1901 Conn. Pub. Acts 158, § 1.

63 Conn. Gen. Stat. ch. 153, § 769b (1930), amended by Cumulative Supp. (1931, 1933).

64 See Connecticut Joint Standing Comm. Hearings, Pub. Health & Safety Comm., Pt. 2, 1975 Sess., 903-05 (testimony of Dr. Hillard Spitz, Vice President, Connecticut State Medical Society).

See also id. at 920-23 (testimony of Dr. Philip A. Shelton, Chairman, Legislative Committee of the Connecticut State Medical Society).

65 1989 Conn. Pub. Acts 389, § 4.

66 Conn. Gen. Stat. § 20-9 (1989).

67 The 1989 legislation also requires all prescription forms used by advanced practice registered nurses to “contain the name, address and telephone number of the physician under whose direction the advanced practice registered nurse is prescribing… . Nothing in this section shall be construed to preclude such form from also containing the name of the advanced practice registered nurse ….” 1989 Conn. Pub. Acts 389, 21.

68 See generally Phillips, , Nurse Practitioners: Their Scope of Practice and Theories of Liability, 6 J. Legal Med. 391, 393-95 (1985)CrossRefGoogle Scholar; Bullough, The Current Phase in the Development of Nurse Practice Acts, supra note 13, at 376-81.

69 Bullough, The Current Phase in the Development of Nurse Practice Acts, supra note 13, at 378.

70 Id. at 376-78, 379-80.

71 Id. at 380-81.

72 See Institute of Med., Nursing and Nursing Education: Public Policies and Private Actions 178 (1983); Weintraub, , A New Role for Nurses: The Nurse Practitioner, 31 Med. Trial Technique Q. 77 (1984)Google Scholar; Phillips, supra note 68, at 393.

73 Molde, & Diers, , Nurse Practitioner Research: Selected Literature Review and Research Agenda, 34 Nursing Res. 362, 364, 365 (1985)CrossRefGoogle Scholar.

74 A protocol can be defined as a written document that both guides a health care practitioner in the collection of data and recommends specific actions based on that data. Greenfield, Protocols as Analogs to Standing Orders, in The Law and the Expanding Nursing Role, supra note 13, at 186. A protocol serves as an expanded checklist that outlines the steps necessary to diagnose and treat specified conditions. Siegel & Bullough, Constructing and Adapting Protocols, in The Law and the Expanding Nursing Role, supra note 13, at 179. The use of protocols originated to guide non-physicians in performing certain tasks, in part as a response to the physician shortage of the late 1960s. Greenfield, Protocols as Analogs to Standing Orders, in The Law and the Expanding Nursing Role, supra note 13, at 186. The original medical projects that designed and tested protocols intended them for physician's assistants, but their use by nurse practitioners and other RNs has become very widespread. Siegel & Bullough, Constructing and Adapting Protocols, in The Law and the Expanding Nursing Role, supra note 13, at 179.

75 Cohn, , Prescriptive Authority for Nurses, 12 Law Med. & Health Care 72, 73 (Apr. 1984)CrossRefGoogle Scholar. The author is indebted to Attorney Cohn for generously sharing her files on the topic of prescriptive authority.

76 Murphy, Prescriptive Authority for Nurse-Midwives, J. Nurse-Midwifery, Mar.-Apr. 1982, at 1, 2 (editorial).

77 Id. at 1.

78 Pearson, NP's Writing Prescriptions Regardless of Enabling Legislation, Nurse Prac, Nov. 1986, at 6 (editorial).

79 Cohn, supra note 75, at 73.

80 Id. Cohn noted that South Carolina and Rhode Island have statutes that would make it illegal to issue a presigned blank prescription form to a nurse practitioner. See S.C. Code Ann. § 44-53-395 (Law. Co-op. 1985); R.I. Gen. Laws § 5-37-19 (1987).

81 See discussion of Texas law infra note 171.

82 A formulary is more specific than a protocol; it is a list or categorization of drugs. Formularies are of two types: inclusionary and exclusionary. An inclusionary formulary lists the drugs that the nurse is permitted to prescribe. All drugs whose use is permitted are included on the list. An exclusionary formulary lists only drugs or categories of drugs that a nurse is prohibited from prescribing. Despite the label, exclusionary formularies generally afford the nurses greater discretion.

83 The three states are Washington, Alaska and Oregon. See discussion on substitutive authority infra notes 87-101 and accompanying text.

84 In cases where the statute or regulations are ambiguous, the author phoned the State Board of Nursing to determine the Board's interpretation of the law.

85 Those jurisdictions are: Alaska, Arizona, Connecticut, District of Columbia, Florida, Idaho, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, Washington and Wisconsin. See a more complete discussion of these states’ laws infra notes 87-120, 153-74. This list does not include those states where nurse-midwives are the only nurses authorized to prescribe. In Rhode Island and Minnesota, for example, prescriptive authority is presently limited to nurse-midwives and does not include nurse practitioners. Telephone interviews with the Rhode Island and Minnesota Boards of Nursing (Aug. 1989); see also R.I. Gen. Laws § 23-13-9 (1988); Minn. Stat. Ann. § 148.171 (West 1989).

In at least four other states — California, Colorado, Georgia and Kansas — nurses arguably have legal authority to prescribe drugs, but the situation is less clear. See infra notes 121-52 and accompanying text. Montana may join the prescriptive authority states in the near future. The 1989 Montana legislature passed a bill permitting the medical and nursing boards jointly to promulgate rules authorizing “nurse specialists” to prescribe. See H.R. 0395102, 51st Leg., 1989 Montana Laws. Nurse practitioners, nurse-midwives and nurse-anesthetists are considered to be nurse specialists. Id. at sec. 3. The relevant language of the bill provides: “The board of nursing and the board of medical examiners, acting jointly, shall adopt rules regarding authorization for prescriptive authority of nurse specialists. If considered appropriate for a nurse specialist who applies to the boards for authorization, prescriptive authority must be granted.” Id. The act became effective on July 1, 1989, but no rules have been adopted.

86 No state authorizes all RNS to prescribe. Only nurses who have met educational and other requirements that exceed the minimal standards for licensure can prescribe drugs. However, Georgia constitutes a possible exception to this conclusion that all states allowing some RNs to prescribe require them to meet educational and other requirements that exceed the standard for licensure. See discussion of recent legislation in Georgia infra note 124.

87 Wash. Rev. Code Ann. § 18.88.030(2) (1989). Although the phrase “recognized jointly by the medical and nursing professions as proper to be performed by nurses” implies a role for physicians that would restrict nurses to complementary status, the regulations governing prescriptive authority that Washington's Nursing Board has adopted pursuant to this statute permit nurses in that state to function autonomously of physicians. This phrase requiring joint recognition appears in the statutes of several states. See Kissam, Physician's Assistant and Nurse Practitioner Laws: A Study of Health Law Reform, 24 U. Kan. L. Rev. 1, 26 n.176 (1975). According to Kissam:

[e]xpanded nursing functions are formally recognized by the medical and nursing professions at the state level through promulgation of “joint practice statements” by the state medical society and state nurses’ association…. NP statutes referring to expanded medical delegation ('recognized by the medical and nursing professions’) appear to be references to such statements.

Id. at 26 n. 176.

88 Wash. Rev. Code Ann. § 18.88.080 (1989).

89 Wash. Admin. Code § 308-120-400 (1988).

90 Id. at §308-120-410.

91 Id.

92 Id.

93 Id. at §308-120-440.

94 Id. at § 308-120-450. Once a Washington RN has obtained prescriptive authority, she alone signs her prescriptions, together with the initials “ARNP” and the prescriber's identification number assigned by the Nursing Board. Prescriptions for controlled substances in Schedules I through IV are prohibited; an ARNP who prescribes Schedule V controlled substances must register with the Drug Enforcement Administration and the Pharmacy Board. Id. at § 308-120-420.

Controlled substances are regulated under federal law. Federal Controlled Substance Act of 1981, 21 U.S.C.A. §§ 801-971 (West 1981 and Supp. 1989). By statute, controlled substances are divided into five groups, or “schedules,” with schedule I drugs designated as the most restricted and schedule V drugs the least restricted. Id. at § 812. Many states have passed legislation paralleling the federal statute to regulate the provision of controlled substances. See, e.g., Conn. Gen. Stat. Ann. § 21a-243 (West Supp. 1989). Even states that have authorized nurses to prescribe drugs typically restrict their ability to precribe controlled substances.

The Washington Nursing Board has imposed only two other major restrictions upon nurses’ prescriptive authority: the ARNP must not prescribe for conditions outside her scope of practice or for non-therapeutic purposes and she must comply with all applicable state and federal laws and regulations. Wash. Admin. Code § 308-120-430 (1988).

95 Wash. Admin. Code § 308-120-420 (1988).

96 Id. at §308-120-430.

97 See generally Alaska Stat. § 08.68.410(8)(F) (1988); Alaska Admin. Code tit. 12, §§ 44.440, 44.445 (Jan. 1988).

98 See generally OR. Rev. Stat. §§ 678.375, .385, .390 (1987); OR. Admin. R. §§ 851-50-120, -125, -130, -135, -140, -155 (1989).

99 See Alaska Admin. Code tit. 12, § 44.445(a) (Jan. 1988).

100 Id. at §44.440(c)(2).

101 OR. Rev. Stat. § 678.385(5) (1987).

102 See discussion of the granting of complementary authority by states infra note 103-78 and accompanying text.

103 The author is indebted to Barbara J. Safriet, Associate Dean, Yale Law School, for developing the outline set forth above to analyze each state's scheme for regulating prescriptive authority. Dean Safriet has done significant research on the topics of prescriptive authority for nurses, and more generally in the area of the regulation of health care providers. She was a principal author of the Oregon legislation, and has generously shared her time and valuable insights.

104 The North Carolina legislature first enacted legislation in 1975 that authorized nurse practitioners and physician's assistants to prescribe drugs. See 1975 N.C. Sess. Laws 627 (codified at N.C. Gen. Stat. § 90-18.1 (1975)), amended by § 90-18.1 (1978) (physician's assistants); § 90-18.2 (1978) (nurse practitioners); see also 1978 N.C. Sess. Laws 1194.

It is not surprising that North Carolina pioneered prescriptive authority for nurse practitioners and physician's assistants, because the state's two major universities were pioneers in the education of physician extenders. In 1965 Duke University instituted the first training program for physician's assistants, and in the late 1960s and early 1970s the University of North Carolina at Chapel Hill organized the first Family Nurse Practitioner Program. See University of North Carolina, Institute of Government, 31 Health L. Bull. 1-2 (Mar. 1972); Legislative Research Commission of North Carolina, Report to the General Assembly of 1977, 2d Sess. 1978, Physicians’ Assistants and Nurse Practitioners 4 (1978).

North Carolina was also the first state to enact a nurse registration act. See 1903 N.C. Laws 359; Bullough, The First Two Phases of Nursing Licensure, in The Law and the Expandinc Nursing Role, supra note 13, at 26.

105 The term “physician extender” usually refers to physician's assistants and nurse practioners.

106 N.C. Gen. Stat. § 90-18.2 (1977).

107 See generally N.C. Admin. Code tit. 21, 32E (Aug. 1987).

108 N.C. Gen. Stat. § 90-18(14) (1985).

109 See N.C. Admin. Code tit. 21, 32E (Aug. 1987).

110 Id. at r. 36D.0102 (Mar. 1987).

111 N.C. Gen. Stat. § 90-18.2 (a) (1985).

112 N.C. Admin. Code tit. 21, 32E, r. 32E.0003 (Aug. 1987).

113 Id.

114 Id.

115 Id. at r. 32E.0003(5). The regulation further provides that all nurses authorized to prescribe will be assigned a number by the Board of Medical Examiners, which shall record and transmit all such numbers to the North Carolina Board of Pharmacy. Id. Authorized nurses must include this number on all their written prescriptions. Id.

116 See id. at r. 32E.0003(3).

117 Id. at r. 32E.0003(2), (5).

118 Id. at r. 32E.0003(5). While neither the statutes nor the regulations contain any explicit limitations on refills or number of dosage units, the legislative history states that the “[p]rovision for refill cannot be given by NP prescription. Quantity may either equal up to one hundred units of the dosage prescribed or a one month supply. Birth control prescriptions may be issued not to exceed one year.” Interpretations of the Joint Subcommittee of the Board of Nursing and the Board of Medical Examiners (1986) (available from the North Carolina Board of Nursing).

119 See N.C. Gen. Stat. § 90-18.2; N.C. Admin. Code tit. 21, 32E, r. 32E.0003(5) (Aug. 1987). In 1975, the Joint Subcommittee of the Board of Medical Examiners and the Board of Nursing adopted a formulary containing the list of drugs which a registered nurse can prescribe.

120 N.C. Gen. Stat. § 90-18.2(e) (1985).

121 Cal. Bus. & Prof. Code § 2836.1 (West Supp. 1988).

122 In Colorado, neither the NPA nor the regulations promulgated by the Nursing Board contain an explicit grant of prescriptive authority to nurses. COLO. Rev. Stat. §§ 12-38-101 to -130 (1985 and Supp. 1988). The “practice of professional nursing” is, however, statutorily defined to include “the performance of both independent nursing functions and delegated medical and dental functions ….” Id. at § 12-38-103(10). “Delegated Medical function” is statutorily defined as “an aspect of care which implements the medical plan as prescribed by a licensed or otherwise legally authorized physician or dentist.” Id. at § 12-38-103(4). It is possible that certain RNs are prescribing in Colorado if their supervising physicians have treated prescribing as a delegated medical function that the nurse performs pursuant to protocol.

In addition, a Colorado nurse who satisfied the educational requirements for a “child health associate” would be authorized to prescribe drugs. A child health associate is defined in relevant part as “a person who, subject to the limitations provided by this article, practices pediatrics as an employee of and under the direction and supervision of a physician whose practice to a substantial extent is in pediatrics.” Id. at § 12-31-102(2). The provisions of Colorado's “Child Health Associate Law” make clear that such associates function in an exclusively complementary role. See generally id. at §§ 12-31-101 to -114.

Because a registered nurse in Colorado could meet the definition of a “child health associate,” or could be exercising prescriptive authority as a delegated medical function, Colorado could be counted as a state according nurses prescriptive authority. As the sections of the NPA quoted above make clear, however, such authority is not granted explicitly to nurses as nurses.

123 In Kansas, legislation that became effective on July 1, 1989, may limit the prescriptive authority that nurse practitioners previously possessed in Kansas. The legislation provides in relevant part:

An advanced registered nurse practitioner may not prescribe drugs but may transmit prescription orders pursuant to a written protocol as authorized by a responsible physician. Each written protocol shall contain a precise and detailed medical plan of care for each classification of disease or injury for which the advanced registered nurse practitioner is authorized to transmit presription orders and shall specify all drugs which may be transmitted by the [ARNP]…. In no case shall the scope of authority of the [ARNP] … exceed the normal and customary practice of the responsible physician…. For the purposes of this subsection, “responsible physician” means a person licensed to practice medicine and surgery who has accepted responsibility for the protocol and the actions of the [ARNP]… involving the transmitting of prescription orders.

Prescriptive Privileges for Advanced Registered Nurse Practitioners (ARNPs), S. 23, sec. (d), Kan. Leg., 1989 Kan. Sess. Laws. This bill was introduced in response to the implementation of permanent rules and regulations by the Kansas Nursing Board which granted ARNPs the authority to write prescriptions based on standing orders and protocols. The Kansas Medical Society questioned whether the ARNP statute authorized the nursing board to promulgate such regulations. Roberts & Glynn, Kansas Legislative Year in Review 1989, The Kan. Nurse, June 1989, at 12. The Kansas legislature's use of the verb “transmit” leaves ambiguous the scope of authority remaining to nurse practitioners. This problem of semantics raises questions similar to those presented by the relevant California statute. See infra notes 144-51 and accompanying text.

124 The state of the law in Georgia is also ambiguous. The 1989 legislature passed House Bill 209, which amended the MPa. the Pharmacy Act, the Georgia Physician's Assistant Act and the NPA. and authorized physicians to delegate to nurses acting pursuant to “nurse protocol” the authority to “order” drugs. The bill added a new section to the MPA which defined a “nurse protocol” as:

a written document mutually agreed upon and signed by a nurse and a licensed physician, by which document the physician delegates to that nurse the authority to perform certain medical acts pursuant to subsection (b) of this Code section, and which acts shall include, without being limited to, the administering and ordering of any drug.

H. 209, Gen. Assembly of Ga., 1989 Sess., Sec. 3 (to be codified at Ga. Code Ann. § 43-34-26.1(a)(7) (1989)). An “order” is defined as the selection of “a drug, medical treatment or diagnostic study through physician delegation in accordance with a nurse protocol or a physician's assistant's job description. Ordering under such delegation shall not be construed to be prescribing, which act can only be performed by the physician, nor shall ordering of a drug be construed to authorize the issuance of a written prescription.” Id. at § 43-34-26.1(a)(8).

House Bill 209 explicitly authorized a physician to delegate to an advanced practice registered nurse acting pursuant to a nurse protocol the authority to order controlled substances in any health care setting in accordance with a formulary established by the Medical Board, and the authority to order in any health care setting “dangerous drugs, medical treatments, or diagnostic studies.” Id. at § 43-34-26.1(b)(1); see also Memorandum from Mark H. Cohen, Senior Ass't Att'y Gen. of Ga. to William G. Miller, Jr., Joint Sec'y, State Examining Boards, Re: Summary of and regulatory responsibilities imposed by House Bill No. 209, at 2 (Apr. 6, 1989) [hereinafter Memorandum]. House Bill 209 also authorized physicians to delegate diagnostic studies, provided that the RN works in specified public health settings or in specified hospital outpatient settings. See H. 209, Gen. Assembly of Ga., 1989 Sess., sec. 3 (to be codified at Ga. Code Ann. §§ 43-34-26.1(b)(2)). “Dispensing procedure” is defined in the new statute. See id. at §§ 43-34-26.1(a)(3.1); see also Memorandum, supra, at 2-3.

Although this new Georgia statute explicitly distinguishes “ordering” a drug from “prescribing” a drug, the statutory definition of “order” leaves unresolved the question of whether nurses, nurse practitioners and physician's assistants have been granted prescriptive authority. To “order” means to select a drug, medical treatment or diagnostic study through physician delegation in accordance with a nurse protocol or physician's assistant's job description. The use of the verb “select” implies a level of professional discretion that is inherent in prescribing. If nurses, nurse practitioners and physician's assistants are exercising their own professional judgment in choosing the drug treatment or study, even within the guidelines established by protocol or formulary, they are in essence prescribing.

125 Cal. Bus. & Prof. Code § 2836.1 (West Supp. 1988).

126 See supra notes 102-20; infra notes 153-78.

127 Cal. Bus. & Prof. Code § 2836.1(b), (c) (West Supp. 1988).

128 Id. at § 2836.1(f).

129 Id. at § 2836.1(g).

130 Id. at § 2836.1(a).

131 See Cal. Nurses Ass'n, Drug Furnishing Bill Passes into Law, 82 Cal. Nurse 1, 9 (Sept. 1986)Google Scholar.

132 Cal. Bus. & Prof. Code § 2836.3 (West Supp. 1988). The Nursing Board is also required to provide California's Pharmacy Board with a list of numbers issued. Id.

133 See Assembly Bill 4372, 1986, ch. 493, 2, 3, 1986 Cal. Legis. Serv. (West) (codified at Cal. Bus. & Prof. Code § 2836.3).

134 Cal. Nurses Ass'n, supra note 131, at 9.

135 Id. at 9.

136 Act of Jan. 1, 1975, ch. 913, stat. 1974.

137 Cal. Bus. & Prof. Code § 2725 (West Supp. 1988) (emphasis added).

138 Cal. Nurses Ass'n, supra note 131, at 1.

139 Cal. Stat. Bd. of Reg. Nurses, Administering, Furnishing, and Prescribing Drugs in Modern Medical and Nursing Practice (Mar. 25, 1980).

140 64 Op. Cal. Att'y Gen. 240 (Mar. 26, 1981). This 1981 opinion quoted the Nursing Board position paper as stating “that current law allows registered nurses to safely prescribe and dispense medications as long as it is done under standardized procedures.” Id. The author could find no such statement in the nursing board position paper. Moreover, in her opinion, the position paper is ambiguous on this question, although it was widely interpreted as authorizing nurses to prescribe pursuant to standardized procedures, even in the absence of a physician's immediate supervision. See Cal. Nurses Ass'n, supra note 131, at 1.

141 Cal. Health & Welfare Agency, Analysis of AB 4372 (1981).

142 See, e.g., S. 755, Cal. Leg. (1983) (sponsored by Robinson); S. 894, Cal. Leg. (1983) (sponsored by Watson); Assembly Bill 3335, Cal. Leg. (1984) (sponsored by Robinson); Assembly Bill 3660, Cal. Leg. (1984) (sponsored by Isenberg); Assembly Bill 772, Cal. Leg. (1984) (sponsored by Robinson); S. 602, Cal. Leg. (1985) (sponsored by Royce).

143 Cal. Bus. & Prof. Code § 2725.1 (West Supp. 1988).

144 Id. at § 4049 (emphasis added).

145 See Assembly Bill 4372, § 3.

146 Cal. Bus. & Prof. Code § 2836.2 (West Supp. 1988).

147 See supra note 56 and accompanying text.

148 Cal. Bus. & Prof. Code § 4036(a) (West Supp. 1988) provides:

“Prescription” means an oral order given individually for the person or persons for whom prescribed, directly from the prescriber to the furnisher, or indirectly by means of a written order, signed by the prescriber, and shall bear the name or names and address of the patient or patients, the name and quantity of the drug or device prescribed, directions for its use, and the date of issue, and either rubber stamped, typed, or printed by hand or typeset the name, address, and telephone number of the prescriber, his or her license classification, and his or her federal registry number, if a controlled substance is prescribed. No person other than a physician, dentist, podiatrist, or veterinarian, shall prescribe or write a prescription.

See also Cal. Health & Safety Code § 11027, 26027 (West 1988).

149 64 Op. Cal. Att'y Gen. 242 n.4d (Mar. 26, 1981).

150 Cal. Bus. & Prof. Code § 2836.3 (West Supp. 1988).

151 Assembly Bill 4372 did not add this language to section 4036 of the Business & Professions Code, but it did retain it. See Assembly Bill 4372 § 5.

152 See discussion of the other complementary states infra notes 153-74.

153 Ariz. Rev. Stat. Ann. § 32-1601 7.(e) (1986); Ariz. Comp. Admin. R. & Regs. R4-19-504 (1987). In Arizona nurses have statutory authority to prescribe drugs pursuant to an “additional acts” clause contained in the Nurse Practice Act's definition of “professional nursing.” The Arizona Nursing Board has issued regulations that authorize only certified nurse practitioners to prescribe. The Board's regulations require the applicant to submit in her application “a plan of accountability between the registered nurse practitioner and collaborating physician regarding the prescribing and dispensing of drugs.” Id. The regulation does not further specify the nature of the collaboration. See id. (setting forth other restrictions on the prescriptive authority of Arizona nurse practitioners).

154 See 1989 Conn. Acts 389 (Reg. Sess.); supra notes 35-67. The Connecticut statute becomes effective on January 1, 1990. Id.

155 See generally D.C. Code Ann. §§ 2-3306.1, .2, .4, .7 (1986); see also D.C. Mun. Regs. tit. 17, §§ 5907.1 -.4, 5910.4 (1989).

156 In Florida, “advanced or specialized nursing practice” is statutorily defined. See FLA. Stat. Ann. § 464.003(3)(c) (West 1987). The relevant regulation provides: “An Advanced Registered Nurse Practitioner shall only perform medical acts of diagnosis, treatment and operation pursuant to a protocol between the ARNP and a Florida-licensed medical doctor, osteopathic physician, or dentist.” FLA. Admin. Code Ann. r. 210-16.002(1) (1988). The regulations further require the written protocol to contain a “collaborative practice agreement,” which specifies “the drug therapies that the ARNP may prescribe, initiate, monitor, alter, or order.” Id. at r. 210-16.002 (2)(b) 3. c. (1988).

157 In Idaho the State Board of Nursing has promulgated minimum standards, rules and regulations for nurse practitioners, which address the writing of prescriptions. See Stat. OF Idaho Board of Nursing, Minimum Standards, Rules and Regulations for Nurse Practitioners, Title 3, Chapter D — Nurse Practitioners, sec. 8., a. (Feb. 12, 1980) (all section references hereinafter are to Title 3, Chapter D).

The regulations require the nurse practitioner's application for prescriptive authority to contain “a statement of the frequency with which the supervising physician will review prescriptions written …” id. at sec. 8., b., ii., and a “signed statement from the supervising physician certifying that, in the opinion of the supervising physician, the nurse practitioner is qualified to prescribe the drugs for which the nurse practitioner is seeking approval and authorization.” Id. at sec. 8., b., iii.; see generally id. at sec. 8 for other restrictions on the prescriptive authority of Idaho nurse practitioners.

158 In Maine the statutory definition of the practice of “professional nursing” defines that term to include certain medical acts. See ME. Rev. Stat. Ann. tit. 32, § 2102 (1988). Despite the language of this statute, the Maine Board of Registration in Medicine, rather than the Maine State Board of Nursing, regulates nurses who exercise prescriptive authority. The Nursing Board merely approves the nurse's credentials.

The Maine State Board of Registration in Medicine has promulgated detailed rules and regulations which in their amended form became effective in November of 1988. Maine Stat. Board of Registration in Medicine, Rules and Regulations for Physician Supervision of Physician Extenders (Nov. 1988). “Physician Extender” is defined as “a Physician Assistant or a professional nurse practitioner performing duties defined in 32 M.R.S.A. section 2102.” Rule No.: PRS (02)-373:3.1.C. For details of the restrictions and conditions placed on the prescriptive authority of Maine Physician Extenders, see the relevant regulation, Authorization for Physician Extenders to Prescribe Drugs, Rule No. PRS (02)-373:3.7.

159 In Maryland the “practice of registered nursing” is defined to include: “(vi) Independent nursing functions and delegated medical functions; and (vii) Performance of additional acts authorized by the (nursing) Board under § 7-205 of this title.” MD. Health Occ. Code Ann. § 7-101(f) (1986).

In Maryland the Nursing Board and the Medical Board have jointly promulgated regulations setting forth “Standards of Practice” for nurse practitioners. The relevant regulation provides that “[a] nurse practitioner may perform the following functions under the terms and conditions set forth in the written agreement: … (4) prescribe drugs;” Md. Regs. Code tit. 10, § 27.07.02 (1981). The regulations define “written agreement” as “the development and implementation of a written agreement between a nurse practitioner and a licensed physician concerning the performance of the functions authorized by these regulations.” Id. at § 27.07.01 (6). The Maryland regulations are very specific about the contents of the written agreement. See generally id. at §§ 27.07.01-.06.

160 The Massachusetts statute that addresses the authority of nurse practitioners to write prescriptions requires a supervising physician and also limits the nurse practitioner's authority to certain kinds of patients in specific settings. Mass. Gen. L. ch. 112, § 80E (1988). The Massachusetts nurse practitioner may prescribe for patients in long term care facilities or for chronic patients in home care settings where the individual would otherwise require institutionalization. Id.; see also id. at ch. 94C, § 7(g).

161 In Michigan, nurses prescribe drugs pursuant to an opinion of Michigan's Attorney General. See OP. Mich. Att'y Gen. 5630 (Jan. 22, 1980). The Attorney General construed a general delegatory statute that accorded physicians considerable discretion in the delegation of tasks and concluded that prescribing was among the tasks that could be delegated. Id. at 8.

162 In Mississippi, the “practice of nursing by a registered nurse” is defined in relevant part as follows:

Nursing practice includes, but is not limited to, administration, teaching, counseling, delegation and supervision of nursing, and execution of the medical regimen, including the administration of medications and treatments prescribed by any licensed or legally authorized physician or dentist. The foregoing shall not be deemed to include acts of medical diagnosis or prescriptions of medical therapeutic or corrective measures, except as may be set forth by rules and regulations promulgated jointly by the state board of medical licensure and the Mississippi Board of Nursing and implemented by the Mississippi Board of Nursing.

Miss. Code Ann. § 73-15-5(2) (Supp. 1988). The Mississippi Board of Nursing has promulgated “Standards of Practice” for advanced practitioners which explicitly accord them prescriptive authority. See, e.g., Mississippi Board of Nursing, Standards of Practice for Family Nurse Practitioners in the Stat. OF Mississippi, § II. A, B (requiring a nurse practitioner to prescribe pursuant to a protocol mutually agreed upon by the nurse practitioner, the supervising physician, and, if appropriate, the employing agency). The protocol must be approved by the Mississippi Board of Nursing. Id.

613 In Nebraska, the relevant statute provides:

The specific medical functions to be performed by a nurse practitioner within the scope of permitted practice defined by § 71-1721 shall be described and defined in the nurse practitioner's practice agreement which shall be approved by the (nursing and medical) boards and a copy of which shall be maintained on file with the boards as a condition of lawful practice under the Nurse Practitioner Act. No nurse practitioner may perform any medical functions not authorized by the approved practice agreement.

Neb. Rev. Stat. § 71-1721.01 (1988).

Nebraska has approximately 27 nurse practitioners, and the majority of them have obtained approval of agreements that allow them to prescribe as a delegated medical act. Thus in Nebraska prescriptive authority is not explicitly contained in any statute or regulation and is not possessed by many Nebraska nurses, but pursuant to this statute, most Nebraska nurse practitioners have obtained some authority to prescribe. Telephone interview with the Nebraska State Board of Nursing (Sept. 1989).

164 In Nevada the scope of practice of an advanced practitioner is statutorily defined and is distinguished from the definition of the “practice of professional nursing.” The relevant statute provides in part:

An advanced practitioner of nursing may engage in selected medical diagnosis and treatment pursuant to a protocol approved by a collaborating physician. A protocol must not include and an advanced practitioner of nursing shall not engage in any diagnosis, treatment or other conduct which the advanced practitioner of nursing is not qualified to perform.

Nev. Rev. Stat. Ann. § 632.237 1. (Michie Supp. 1988). In addition, a provision of the Nevada statutes governing “Poisons; Dangerous Drugs and Hypodermics; Prophylactics,” explicitly authorizes registered nurses to prescribe “by written prescription only, poisons, dangerous drugs and devices for legitimate medical purposes” provided that the nurse prescribes pursuant to protocol. Id. at § 454.695. The statute defines “protocol” as “the written agreement between a physician and a registered nurse which sets forth …” various matters including the patients whom the nurse may serve, the specific poisons, drugs and devices that she may prescribe, and the conditions under which she shall refer patients to the physician. Id. The protocol must be reviewed by the Nevada State Nursing Board, id., which has promulgated regulations specifying the requirements that advanced practitioners must meet if they wish to be authorized by the Nursing Board to write prescriptions. See, e.g., Nev. Admin. Code ch. 632, §§ 632.257, .258, .259 (1988).

165 New Hampshire's statute defining “Advanced Registered Nurse Practitioner” contains explicit prescriptive authority for ARNPs. That statute provides in relevant part:

An A.R.N.P. who functions in connection with protocols established jointly with a collaborative physician may prescribe medications from the official formulary which has been jointly agreed upon by the board of registration in medicine and the board of nursing. The formulary shall be kept on file with the boards of nursing and medicine and shall be reviewed and updated annually. The A.R.N.P. shall file with the board of nursing the A.R.N.P.'s name, a current number issued by the federal Drug Enforcement Administration (DEA), and the collaborative physician's name and DEA number. The A.R.N.P. shall notify the board in writing immediately of any changes in the information required of the A.R.N.P. or the collaborative physician under this section. The A.R.N.P.'s name, specialty area, and DEA number, the collaborative physician's name and DEA number, and the formulary shall be distributed to each licensed pharmacy in New Hampshire.

N.H. Rev. Stat. Ann. § 326-B:10 II. (Equity Supp. 1988). The New Hampshire Board of Nursing has also promulgated regulations governing nurses functioning in the expanded and their prescriptive powers. See generally N.H. Code Admin. R. [Nurse] 501.08 (1988).

166 In New Mexico, “professional nursing,” as defined in the NPA. “shall not prevent the expanded practice of the registered nurse ….” N.M. Stat. Ann. § 61-3-3 (1978). As authorized by this statutory definition, the New Mexico Board of Nursing has adopted regulations setting forth the procedure for certifying nurses who function in expanded and advanced practice. See generally New Mexico Board of Nursing, Administrative Rules and Regulations, Bon Manual No. 85-1, Art. V (Sept. 9, 1985) (amended Jan. 7, 1988). These regulations accord nurse practitioners explicit authority to prescribe, but only pursuant to protocol and under the supervision of a physician.

167 During the summer of 1988 New York enacted restrictive legislation that took effect on April 1, 1989. See 1988 N.Y. Laws 257. The New York statute uses the mechanisms of a written agreement and practice protocols to ensure that nurse practitioners exercising prescriptive authority function as complements to a supervising physician. Despite limiting prescriptive authority to nurse practitioners who have also satisfied additional educational requirements in pharmacology, the New York statute accords authorized nurse practitioners little autonomy.

168 In Pennsylvania the “practice of professional nursing” is defined as the diagnosing and treating human responses to actual or potential health problems through such services as casefinding, health teaching, health counseling, and provision of care supportive to or restorative of life and well-being, and executing medical regimens as prescribed by a licensed physician or dentist. The foregoing shall not be deemed to include acts of medical diagnosis or prescription of medical therapeutic or corrective measures, except as may be authorized by rules and regulations jointly promulgated by the State Board of Medicine and the (Nursing) Board, which rules and regulations shall be implemented by the (Nursing) Board.

Pa. Stat. Ann. tit. 63, § 1212 (Purdon Supp. 1989).

In the rules and regulations promulgated under the Senate, a C.R.N.P. is defined in relevant part as:

[a] registered nurse duly licensed in this Commonwealth who is certified by the Boards in a particular clinical specialty area and who, while functioning in the expanded role as a professional nurse, performs acts of medical diagnosis or prescription of medical therapeutic or corrective measures in collaboration with and under the direction of a physician licensed to practice medicine in this Commonwealth ….

Stat. Board of Nursing Examiners, Rules and Regulations of the Stat. Board of Nurse Examiners for Certified Registered Nurse Practitioner (Pa. B. Doc. No. 77-1404 July 22, 1977).

169 In South Dakota the scope of practice of both nurse practitioners and nurse midwives is subject to the joint control of the board of nursing and the board of medical and osteopathic examiners. S.D. Codified Laws Ann. § 36-9A-5 (1986). Nurse practitioners have explicit statutory authority to prescribe drugs, but as in North Carolina, prescribing is defined as a medical function which may be delegated to the nurse practitioner. Id. at § 36-9A-12. The specific medical functions to be performed by a nurse practitioner must be specified in her practice agreement with the supervising physician, and the agreement must be approved and filed with the boards. Id. at § 36-9A-16. The South Dakota statute defining supervision makes clear that a nurse practitioner is to function in a highly complementary role. See id. at § 36- 9A-17.

The South Dakota Board of Nursing has promulgated rules governing the prescriptive authority of nurse practitioners and nurse midwives, but they are less detailed than the statutory provisions. See generally S.D. Admin. R. 20:62:04:01 to :03 (1986).

170 Tennessee law restricts prescriptive privileges to nurses who meet advanced educational requirements and who are recommended for such authority by the primary care board at the site where they are practicing. See Tenn. Code Ann. § 63-7-123 (1987); id. at § 63-1-132 (Supp. 1988) (formerly § 68-1-602); id. at § 68-1-701 (1987); see generally Tenn. Comp. R. & Regs. ch. 1000-4 (1985).

The Tennessee statutes and regulations make clear that nurse practitioners who have prescriptive authority may exercise that authority only at specifically enumerated sites. In addition to site restrictions, Tennessee law imposes other legal constraints on nurse practitioners exercising prescriptive authority. The statutes explicitly leave legal responsibility for the nurse practitioner's prescriptions with the supervising physician. Thus in Tennessee, nurse practitioners who prescribe are relegated to a very complementary role, despite the stringent requirements set forth in Tennessee's regulations for nurse practitioners seeking such authority.

171 Neither the Texas NPA nor the rules and regulations promulgated by the Board of Nurse Examiners for the State of Texas contain explicit authority for nurses in that state to prescribe drugs. See generally Tex. Rev. Civ. Stat. Ann. art. 4513-4528 (Vernon 1976 and Supp. 1988); Texas Nursing Board, Rules and Regulations Relating to Professional Nurse Education, Licensure and Practice, sec. G (July 1988). Communication with the Texas Nursing Board indicated, however, that Texas nurses do prescribe pursuant to a doctor's written protocols and that prescribing activity is governed by the Board's rules for advanced nurse practitioners. See id. at sec. 221.6. The Texas Nursing Board interprets this regulation to accord certain nurse practitioners delegated authority to prescribe drugs. But no Texas statute or regulation provides nurses with independent authority to prescribe. Thus in Texas, nurses who prescribe must function in an extremely complementary role, and their delegated prescriptive authority is not explicitly articulated in the law.

Unfortunately, a 1989 act of the Texas legislature complicates the question of the scope of prescriptive authority possessed by Texas nurses. See H.R. 18, Tex., Leg., §§ 19-25 (1989). In general this act authorizes physicians to delegate to registered nurses and physician's assistants the authority “to carry out a prescription drug order” at sites serving medically underserved populations or in health manpower shortage areas. See id. at § 19 (defining the phrase “carrying out a prescription drug order“); see also id. at § 22 (amending the definition of professional nursing contained in the Texas Nurse Practice Act. Tex. Rev. Civ. Stat. Ann. art. 4518, § 5 (Vernon 1976 and Supp. 1988)). The amended version of that definitions reads in relevant part:

The foregoing shall not be deemed to include acts of medical diagnosis or prescription of therapeutic or corrective measures. Nothing in this section shall be construed as prohibiting a registered nurse recognized by the board as having the specialized education and training required under § 7, art. 4514, Rev. Stat., and functioning under adequate physician supervision from carrying out prescription drug orders or treatments under physician's orders, standing medical orders, standing delegation orders, or other orders or protocols.

Id. Texas is thus a good example of the difficulty of determining on the face of the relevant statutes and regulations whether nurses in a particular jurisdiction are authorized to prescribe drugs. It is chiefly on the basis of conversations with the Texas Board of Nursing that the author has chosen to include Texas among the prescriptive authority states.

172 Utah has enacted a self-contained set of statutes, the Nurse Practitioner Prescriptive Practice Act, which establishes a multidisciplinary board to regulate the practice of nurse practitioners who prescribe. Utah Code Ann. §§ 58-31a-l to 58-31a-6 (1988). Utah law requires that a nurse practitioner have a written agreement with a supervising physician before she may prescribe, and that she prescribe pursuant to protocols. The statutory definitions of “agreement” and “protocols” make clear that the nurse pratitioner is to function in a strictly complementary role. See id. at §§ 58-31a-2(1), (7) (1986). In addition the Nurse Practitioner Prescriptive Practice Act contains a formulary which lists the drugs that may be included as part of the protocols. Id. at § 58-31a-3.

173 The Vermont Nurse Practice Act contains an “additional acts” clause in its definition of “professional nursing.” This clause permits the “[p]erformance of such additional acts requiring education and training and which are recognized jointly by the medical and nursing professions as proper to be performed by registered and licensed professional nurses.” Vt. Stat. Ann. tit. 26, § 1572 (2)(E) (Supp. 1988). The Rules and Regulations for Nurse Practitioners promulgated by the State Board of Nursing define the nurse practitioner's scope of practice. See Vt. Admin. Proc. Comp. [Vt. State Bd. of Nursing] N 11.04(B)(2) (1983). With respect to prescriptions, the regulations provide that “[p]rescriptions may be written and signed by the Nurse Practitioner for those drugs covered in current protocols and in compliance with all other state laws and regulations. A current list of endorsed nurse practitioners will be made available to the Vermont Board of Pharmacy.” Id. at § N 11.04(B)(3). Thus in Vermont, as in the other complementary states, nurses have strictly dependent, or complementary, authority. Their prescriptive powers must be specified in a protocol and may not be exercised except under the supervision of a physician. Id. at § N 11.04(B)(2).

174 In Wisconsin, the “practice of professional nursing” is broadly defined to include the performance for compensation of any act in the observation or care of the ill, injured or infirm, or for the maintenance of health or prevention of illness of others, which act requires substantial nursing skill, knowledge or training, or application of nursing principles based on biological, physical and social sciences, such as the observation and recording of symptoms and reactions, the execution of procedures and techniques in the treatment of the sick under the general or special supervision or direction of a physician, podiatrist or dentist ….

Wis. Stat. Ann. § 441.11(4) (West 1988) (emphasis added).

The rule governing the performance of delegated medical acts provides:

In the performance of delegated medical acts in the treatment of the sick an R.N. shall: (a) Accept only those delegated medical acts for which there are protocols or written or verbal orders; (b) Accept only those delegated medical acts for which the R.N. is competent to perform based on his or her nursing education, training or experience; (c) Consult with a physician, dentist or podiatrist.

Wis. Admin. Code § N 6.03(2) (Sept. 1985). In Wisconsin, nurse practitioners, nurse-midwives and nurse anesthetists are prescribing pursuant to this rule, coupled with the broad statutory definition of professional nursing. Telephone interview with the Wisconsin State Board of Nursing (Sept. 1989). Some clinical specialists are also prescribing in certain settings. Id.

175 For example, Idaho, Maine, North Carolina, New Hampshire and Utah have all enacted formularies restricting the drugs that a nurse practitioner may prescribe. See supra notes 157, 158, 165, 172.

176 The following states permit a nurse practitioner to prescribe only pursuant to protocol: Florida, Michigan, Mississippi, Nevada, New Hampshire, New Mexico, New York, North Carolina, Utah and Vermont. See supra notes 156, 161, 162, 164-67, 104-23, 172, 173. This list is not exclusive; other states also require what is essentially a protocol but call it another name, such as “written agreement” or “standardized procedure.” See, e.g., supra notes 121-52 (discussion of California's Nurse Practice Act).

177 Statutes enacted in such diverse jurisdictions as Massachusetts, Tennessee and California have imposed site restrictions on nurses’ prescriptive authority. See supra notes 143-52, 160, 170.

178 See Molde & Diers, supra note 73, at 364, 365.

179 Stedman's Medical Dictionary, supra note 3, at 1136.

180 The availability of insurance coverage would influence a consumer's choice of provider and affect the success of the proposed reform. For most consumers, an important factor in choosing a health care provider is whether their insurance will cover that provider's charges. Many health insurance policies are restrictive in their coverage and require the consumer to choose a physician when other providers could perform the same services at a lower cost. Insurance coverage is an important issue because it affects the nurse practitioner's ability to exercise her prescriptive authortiy. See, e.g., Caraher, , The Importance of Third-Party Reimbursement for NPs, 13 Nurse Prac. 50 (1988)Google Scholar; Phillips, , Reimbursement for Nursing Services, 5 Nursing Economics 220 (1987)Google Scholar. It is beyond the scope of this article, however, to discuss the relationship between professional licensure and third-party payment. For purposes of the authorized prescriber proposal, the author has assumed that insurance companies could be persuaded to cover the services of any authorized prescriber if the proposal were widely adopted by state legislatures. Insurance companies have an incentive to reimburse consumers for services by authorized prescribers, other than physicians, because they are cheaper.

181 Testing prescribers for competency is no more imperfect as a screening device than any of the existing professional licensing examinations.

182 Because the licensing of health care professionals is a state function, the examination would probably be prepared and administered by a state board. However, if the idea were widely accepted, a national examination could be adopted, and a national multidisciplinary board could prepare and administer the test.

183 The criteria for determining eligibility to sit for the authorized prescriber examination might include:

  1. (1)

    (1) The candidate's terminal degree — bachelor's, master's, or doctorate;

  2. (2)

    (2) The number of courses or credit hours in pharmacology or drug therapy completed by the candidate;

  3. (3)

    (3) The duration and type of clinical training experienced by the candidate; and

  4. (4)

    (4) The source of accreditation of the degree program completed by the candidate.

This list is not intended to be comprehensive; it merely raises some of the criteria that might be used to determine who should be permitted to sit for an authorized prescriber examination.

184 A statutory definition that emphasized the education and clinical training of eligible providers and restricted eligibility to those meeting certain minimum requirements would be consistent with part two of this proposal. See infra notes 189-99 and accompanying text.

185 It might be more practical to institute categories of licensure by type of drug than by type of disease. Because many different diseases have the same types of symptoms, it is often difficult to diagnose the exact disease.

186 Stedman's Medical Dictionary, supra note 3, at 1136.

187 Munroe, , Pohl, , Gardner, & Bell, , Prescribing Patterns of Nurse Practitioners, 82 Am. J. Nursing 1538 (1982)Google Scholar; Rosenauer, , Prescribing Behaviors of Primary Care Nurse Practitioners, 74 Am. J. Pub. Health 10 (1983)CrossRefGoogle Scholar.

188 Munroe, Pohl, Gardner & Bell, supra note 187, at 1539.

189 For a definition of “diagnosis,” see Stedman's Medical Dictionary, supra note 3, at 1136.

190 These turf wars between professions often result in expensive and prolonged litigation. In Connecticut, for example, podiatrists and orthopedic surgeons battled over the question of whether the treatment of the ankle was within the authorized scope of podiatric practice in Connecticut. The Connecticut Supreme Court sided with the orthopedic surgeons and ruled that it was not. State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 546 A.2d 830 (1988).

191 There is an extensive literature examining the need to reform state licensure laws. See, e.g., L. Andrews, Deregulating Doctoring (1983); Baron, , Licensure of Health Care Professionals: The Consumer's Case for Abolition, 9 Am. J.L. & Med. 335 (1983)Google Scholar; Bell, , Medico-Legal Implications of Recent Legislation Concerning Allied Health Practitioners, 11 Loy. L.A. L. R. 379 (1978)Google Scholar; Clark, , Why Does Health Care Regulation Fail? 41 MD. L. R. 1 (1981)Google Scholar; Havighurst, , A Comment: The Antitrust Challenge to Professionalism, 41 MD. L. R. 30 (1981)Google Scholar; Cohen, , Reaction to Clark on Regulation, 41 MD. L. R. 38 (1981)Google Scholar; Rome, , Medicine and Public Policy: Let Us Look Before We Leap Again, 41 MD. L. R. 46 (1981)Google Scholar; Clark, , Further Comments, 41 MD. L. R. 68 (1981)Google Scholar; Cohen, , Professional Licensure, Organizational Behavior and the Public Interest, 51 Milbank Memorial Fund Q. 73 (1973)CrossRefGoogle Scholar; Derbyshire, , Comments, 51 Milbank Memorial Fund Q. 89 (1973)CrossRefGoogle Scholar; Cohen, & Dean, , To Practice or Not to Practice: Developing State Law and Policy on Physician Assistants, 52 Milbank Memorial Fund Q. 349 (1974)CrossRefGoogle ScholarPubMed; Cohen, , On Professional Power and Conflict of Interest: State Licensing Boards on Trial, 5 J. Health Pol. Pol'y & L. 291 (1980)CrossRefGoogle Scholar; Gaumer, , Regulating Health Professionals: A Review of the Empirical Literature, 62 Milbank Memorial Fund Q. 380 (1984)CrossRefGoogle Scholar; Kissam, supra note 87. The author is indebted to all of these commentators for their critical examination of the state licensing laws regulating health care professionals.

For an important recent commentary on many of the issues discussed in this article, see Institute of Medicine, supra note 10, at 235-58. The committee authorizing this report reached the same conclusion as this author namely that certification statutes are superior to the current licensure statutes. Id. at 255.

192 Andrews argued for the abolition of licensing and the substitution of a voluntary system of certification. Andrews, supra note 191, at 33-37. It is unclear whether Andrews would reserve to the state any role under a voluntary certification scheme. While the author is indebted to Andrews for her provocative work, she disagrees with Andrews’ proposal if it would eliminate any kind of licensing scheme. The state has a role in policing the provision of information, and in testing and disciplining professionals. The elimination of the unauthorized practice provisions of the health practice acts would accomplish much of what Andrews desires while retaining some useful aspects of the state licensure laws.

193 The initial nursing licensure statutes were certification statutes. See supra notes 68-178.

194 This is not to argue that the public should rely for protection exclusively on malpractice litigation. Such an approach is extremely costly and inefficient, as we have witnessed in recent years. However, the availability of a tort remedy does help to ensure competence in the performance of professional and non-professional actions. Moreover, as noted above, incompetence is also a basis for disciplinary action by the state boards that regulate the professions.

195 Moreover, it is difficult to imagine any consumer choosing a nurse practitioner to perform brain surgery.

196 Andrews, supra note 191 (Introduction).

197 V. Fuchs, Who Shall Live? 61, 76-78, 150-51 (1983).

198 There are other problems with institutional licensure. For example, it restricts the mobility of professionals, and it would not regulate the substantial amounts of care provided outside of institutional settings. Certification statutes do not have these weaknesses.

199 The Institute of Medicine committee studying allied health services also articulated this view. See Institute Of Med., supra note 10, at 255.