Gen. 173] 173

1

 This opinion generally concurs with advice previously given to the

State Board of Pharmacy and the Board of Physician Quality Assurance.

Memorandum from Assistant Attorneys General Geoffrey J.C. Boyd and

C. Frederick Ryland (December 9, 1992). The question posed to us does

not call for a discussion of federal regulations relating to controlled

dangerous substances.

HEALTH OCCUPATIONS

PHYSICIANS ) PHYSICIAN ASSISTANTS ) REGULATION OF

PRESCRIBING AND DISPENSING OF DRUGS BY PHYSICIAN

ASSISTANTS

February 1, 1995

The Honorable Martin P. Wasserman

Secretary of Health and Mental Hygiene

Your predecessor as Secretary of Health and Mental Hygiene

requested our opinion on the interplay between the Maryland

Physician Assistants Act and the Maryland Pharmacy Act.

Specifically, Secretary Sabatini’s question was whether the Board of

Physician Quality Assurance may adopt regulations permitting

physician assistants to write prescriptions for, and dispense

medication to, patients in hospitals and other health care settings.

For the reasons stated below, we conclude as follows: The

Board has authority to adopt a regulation specifying the

circumstances under which the job descriptions of physician

assistants may include prescribing. A regulation may not authorize

physician assistants to dispense prescription medicines, however.1

We recognize that the State Board of Pharmacy and others

have serious reservations about the wisdom of allowing physician

assistants, given the nature of their training, to write prescriptions.

At the same time, physician assistant organizations and others

strongly advocate the utility of this type of delegation. We should

not and do not enter this debate, which the Board of Physician

Quality Assurance will resolve in its rulemaking proceeding if the

General Assembly does not do so by amending the Physician

Assistants Act or the Pharmacy Act. This opinion reflects our
174 [80 Op. Att’y

interpretation of current law; we leave the policy judgments to

others. 

I

Prescribing

A. Scope of Practice of Physician Assistants

With certain exceptions that are not relevant here, “an

individual shall be certified by the Board before the individual may

practice as a physician assistant.” §15-301(b)(1) of the Health

Occupations (“HO”) Article, Maryland Code. In general, to

“practice as a physician assistant” is to perform “medical acts

delegated to a physician assistant under this title.” HO §15-101(i).

The scope of practice of a certified physician assistant is limited to:

(i) Services within the training or

experience of the physician assistant;

(ii) Services customary to the practice of

the supervising physician;

(iii) Services delegated by the supervising

physician; and 

(iv) The approved job description from

the Board.

HO §15-301(a)(1). Among the patient services that a physician

assistant may perform are “[i]nterpreting and evaluating patient data

as authorized by the supervising physician for the purpose of

determining management and treatment of patients,” “[t]ranscribing

or executing specific orders at the direction of the supervising

physician,” and “[o]ther medical acts permitted to be delegated

under an approved job description.” HO §15-301(2)(iii), (vi)3, and

(vii). 
Gen. 173] 175

A “medical act” unquestionably includes prescribing

medication. A “medical act” refers to acts that are within the scope

of practice of medicine. See Mashak v. Poelker, 356 S.W.2d 713,

720 (Mo. App. 1962). Under HO §14-101(k)(2)(i), the “practice

[of] medicine” includes “prescribing for ... any physical, mental, or

emotional ailment or supposed ailment of an individual ....” 

Thus, because a physician may prescribe medication as part of

his or her practice of medicine, the physician may delegate that

medical act to a physician assistant “under an approved job

description.” The job description must contain, among other things,

a list of “all medical acts to be delegated to the physician assistant

and the supervision to be performed,” as well as a description of “the

specialized training provided to the physician assistant and the

supervision to be provided by the supervising physician.” HO §15-

302(b)(1)(i)(iii). 

The Maryland Pharmacy Act does not itself inhibit the

authority of a physician assistant to prescribe medication under an

approved job description. Under HO §12-313(b)(14), a pharmacist

who dispenses a drug for which a prescription is required “[w]ithout

first having received a written or oral prescription for the drug from

an authorized prescriber” is subject to professional discipline. See

also HO §12-507(a) (requiring “authorized prescriber” to date

prescriptions). 

The term “authorized prescriber” is defined in HO §12-101(b)

as follows: 

“Authorized prescriber” means any

licensed dentist, licensed physician, licensed

podiatrist, licensed veterinarian, certified

nurse mid-wife to the extent permitted in §8-

601 of this Article, or other individual

authorized by law to prescribe drugs,

medicines, or devices.” 
176 [80 Op. Att’y

2

 For a discussion of the relationship between a prior version of the

definition of “authorized prescriber” and other law authorizing a health

care practitioner to write prescriptions, see 71 Opinions of the Attorney

General 142 (1986).

3

 Until they were repealed in 1991, Board regulations prohibited the

delegation to a physician assistant of the duty to prescribe or dispense

drugs. Former COMAR 10.32.03.06. The Board’s existing regulations

governing physician assistants do not expressly address the circumstances

under which physician assistants may prescribe medication. In 1991, the

Board addressed the matter in a policy statement that, not having been

adopted as a regulation, was legally unenforceable. §10-125(d)(3) of the

State Government Article, Maryland Code. See 78 Opinions of the

Attorney General 8 (1993); 76 Opinions of the Attorney General 3 (1991);

57 Opinions of the Attorney General 478 (1972). Since that time, the

Board has been participating in a legislative review of the topic and

working on draft regulations.

(Emphasis added.) A physician assistant who, under an approved

job description, has been delegated the authority to write

prescriptions would be an “individual authorized by law to prescribe

drugs, medicines, or devices.” The “law” in this case is HO §15-

301, as interpreted by the Board of Physician Quality Assurance.

Hence, the physician assistant would be an “authorized prescriber.”2

B. Rulemaking Authority of the Board of Physician Quality

Assurance

Under HO §15-205(b)(1), “the Board shall adopt regulations

to carry out provisions of this title” ) that is, the Physician

Assistants Act. Should the Board determine that generally

applicable standards or requirements ought to apply to job

descriptions that delegate to physician assistants the authority to

prescribe medication, the Board has authority to adopt those

regulations.3

The Board’s broad, express rulemaking authority in HO §15-

205(b)(1) is unaffected by the recent failure of legislation

specifically authorizing prescribing by physician assistants under

some circumstances. See House Bill 1527 of 1994. The defeat of

this bill might be attributable to dissatisfaction with various aspects

of it; its defeat does not necessarily reflect a policy decision that

physician assistants should have not the authority to prescribe

medication. In any event, however one might speculate in this

regard, the defeat of legislation of this kind is not a repeal of existing
Gen. 173] 177

4

 This definition is as follows:

(1) “Practice pharmacy” means to engage in

any of the following activities:

 (i) Selecting, preparing, and dispensing

drugs, medicines, or devices;

 (ii) Providing information and explanation

to patients and health care practitioners about the

safe and effective use of drugs, medicines, or

devices; or 

 (iii) Identifying and appraising problems

concerning the use or monitoring of drug therapy.

(continued...)

statutory authority. See, e.g., American Trucking Ass’ns v.

Atchinson, T. & S.F. Ry., 387 U.S. 397 (1967) (agency rulemaking

authority unaffected by Congress’ failure to amend statute to

authorize the rules); FTC v. Dean Foods Co., 384 U.S. 597 (1966)

(agency jurisdiction unaffected by Congress’ failure to enact

legislation conferring jurisdiction); 79 Opinions of the Attorney

General 347 (1994) (existing agency authority to implement “family

cap” limitation on welfare benefits unaffected by amendment

deleting “family cap” provision from welfare reform bill); 77

Opinions of the Attorney General 110 (1992) (existing agency

authority to implement prescription drug discount program

unaffected by General Assembly’s failure to pass departmental

legislation conferring specific authority). 

Should the Board decide to adopt regulations governing

prescribing by physician assistants, in our opinion the Board is not

required to adopt such a regulation jointly with the State Board of

Pharmacy. To be sure, HO §15-301(d)(1) provides that, “if a duty

that is to be delegated under this section is a part of the practice of

a health occupation that is regulated under this article by another

board, any rule or regulation concerning that duty shall be adopted

jointly by the Board of Physician Quality Assurance and the board

that regulates the other health occupation.” A regulation

determining the circumstances under which a physician assistant

may write a prescription, however, does not deal with “a part of the

practice of a health occupation that is regulated ... by another board

....” 

The practice of pharmacy does not include prescribing

medication, however. See HO §12-101(j).4

 Although a pharmacist’s
178 [80 Op. Att’y

4

 (...continued)

(2) “Practice pharmacy” does not include the

operations of a person who holds a permit issued

under §§12-601 and 12-602 of this title.

The latter paragraph refers to manufacturers and distributors.

5 HO §12-102(e) deals with the distinct act of “administering a

prescription drug in the course of treating a patient.” Our discussion of

dispensing by a physician assistant does not apply to administering.

scope of practice does include an obligation to refrain from

dispensing drugs on the prescription of someone who is not an

“authorized prescriber,” physician assistants would be “authorized

prescribers” to the extent permitted by the Board of Physician

Quality Assurance. See Part IA above. Cf. 76 Opinions of the

Attorney General 3 (1991) (when an activity proposed to be

undertaken by physical therapists falls within the scope of practice

of chiropractic, nevertheless Physical Therapy Board alone has

regulatory jurisdiction to decide whether activity is permissible for

physical therapists).

II

Dispensing 

The definition of “practice [of] medicine” in HO §14-101(k)

does not explicitly include the dispensing of prescription medication

by a physician. While the dispensing of medication might be

comprehended by some of the broad language in that definition, the

physician’s explicit authority to dispense derives from provisions in

the Pharmacy Act. HO §12-102(c) (d), (f), and (g) set forth

carefully limited circumstances under which specified health care

practitioners, including physicians, may personally dispense

medication. See also HO §12-102(a)(3) (definition of “personally

preparing and dispensing”).5 By contrast with the definition of

“authorized prescriber,” these provisions on dispensing do not give

authority to dispense to “other individual[s] authorized by law.”

Particularly in light of that omission, we read these provisions as

intended to limit the dispensing of medication to the physician

personally. In our opinion, the dispensing of medication may not be

delegated to a physician assistant. 
Gen. 10] 179

III

Conclusion

In summary, it is our opinion that the Board has authority to

adopt a regulation specifying the circumstances under which the job

descriptions of physician assistants may include prescribing. A

regulation may not authorize physician assistants to dispense

prescription medicines, however.

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice