Untitled Texas Attorney General Opinion ( 1985 )

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‘The Attorney General of Texas
JIM MAlTOX March 27. 1985
AttorneyGeneral
Carlos D. Godinez. M.D. Opinion No. JM-304
President
Texas State Board oE Medical Re: Whether section 5.09(a)
Examiner8 of article 4495b. V.T.C.S.,
P. 0. Box 13562, CapLtol Station authorizes a physician to
Austin, Texas 78711 collect reimbursement for
drugs supplied to patients
714 Jack6on. SUItO 700
oallas, TX. 75zozm Dear Dr. Godinez:
2lu742-8944
You ask whether a physician may be reimbursed for the coat of
4824 Alberta Ave.. Suite 160 dangerous drugs or controlled substances supplied a patient under the
El Paec..TX. 799052793 authority of sectton 5.09(a) of article 4495b, V.T.C.S., of the
OlY53334M Medical Practice Act. Article 5.09 reads in Its entirety:
1001 ma* swa 700 Sec. 5.09. (a) A person licensed to practice
l4oueton. TX. 77002-311t medicine under this Act is authorized to supply
71- the needs of his patients with any drugs or
remedies as are necessary to meet the patients’
immediate: needs; provided, howwer, this section
Suite 312
808 Emadw*y,
LubtJcck,
TX.70401447Q doesaotpem&tthepttpaMantonperatea retaW
emf747-5235 pharmacy vithout first complying with the Texas
Phermacy Act.
Uoo N. Tsnth. Sulle B physician vho practices
cb) A licensed
McAllsn, TX. 78501-1485
51-7
uidlcinc in a rural area in which there is no
pharmacy may maintain a supply of dangerous drugs
,ln the o:E:Mce of the physician to be dispensed in
200 MaIn Ptua, wte uw) the course of treating the physician’s patients
San Antonlo. TX. 752052797 and may be reimbursed for the cost of supplying
512n2n101
those dtqs without obtaining a license under the
Texae~ Pharmacy Act (Article 4542a-1, Vernon’s
Texas Civil Statutes). Such physicians shall
comply with all appropriate labeling sections
applicable to this class of drugs under the Texas
Pharmacy Act, and oversee compliance with
packaging and recordkeeping sections applicable to
this elms of drugs. For the purposes of this
subsectimn:
(1) t’hc term ‘rural area’ means an area in
which there is no pharmacy within a 15-mile radius
of the physician’s office. and is within:
p. 1379
Dr. Carlos D. Godinez - Page :!
(A) a county with a total population of 5,000
or less according to the most recent federal
census; or
@) a city or town, incorporated or
unincorporated, with s population of less than
2,500, according to the most recent federal
census, but shall not include a city or town.
incorporated or unincorporated, whose boundaries
arc adjacent to ar, incorporated city or town with
an equal or greater population.
(2) the term 'reimbursed for cost' shall mean
an additional cha,rSe separate from that made for
the physician's professional services which
include the cost af the drug product and all other
actual costs to the physician incidental to
providing the dispensing service but not including
a separate fee for the act of dispensing the drug
product itself.
The Sixty-eighth Legislature added section 5.09(b) to the Medical
Practice Act and an identlc.al provision to the Texas Pharmacy Act.
Acts 1983, 68th Leg., ch. S90, 551, 2 (codified as V.T.C.S. srts.
4542a-1, 033(c); 4495b. i5.09). The ssme enactment placed the word
"retail" before "pharmacy" in section 5.09(a), originally enacted in
1981 as section 5.09 of the YledicalPractice Act. -See Acts 1981. 67th
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You first ask:
1. May a phys::cianwho, under the authority of
section 5.09(a) of the Medical Practice Act,
suppl.iesdangerow drugs or controlled substances
to a patient tc meet the patient's Imediate
needs. be reimbursed for the cost of the drug
product supplied :Lf [certain conditions are met].
The Medical Practice Act does not define "supply." Rowever,
section 3.06(d), authorizing: a physician to delegate to others the
administration or provision of dangerous drugs, defines "provision" as
follows:
'provision' means 'cosupply one or more unit doses
of a drug, medicf&, or dangerous drug. The drug
or medicine shal~l be supplied in a suitable
container thathasbeen labeled in compliance with
the applicable dru:glaws. (Emphasis added).
V.T.C.S. art. 4495b, 13.06:~1)(3)(4). When the patient is "supplied"
medicine. he is given one or more doses to take with him and to use
p. 1380
Dr. Carlos D. Godinez - Page 3 (JM-304)
according to the physician's instructions. See also V.T.C.S. art.
4542a-1. 119(f); Attorney General Opinion MI-410 (1981) (under
Pharmacy Act physician may administer medication to patients without
being licensed as a pharmacist).
Section 5.09(a) does not expressly permit reimbursement for the
cost of drugs supplied under its authority. It does not pennit a
physician to operate a reta:tl.pharmacy without first complying with
the Texas Pharmacy Act. The Texas Pharmacy Act, article 4542a-1.
V.T.C.S., includes In sectiorl19 an exemption for physicians expressed
in language similar to that in.section 5.09(a):
(c) This Act does not apply to a practitioner
licensed by the npproprlate state board who
supplies his patients with dNgS in a manner
authorized by stale or federal law and vho does
not operate a plumnacy for the retailing of
prescription drugs.,
Texas Pharmacy Act, Acts 15181, 67th Leg., ch. 255, 519(c), at 650
("retailing" is incorrectly codified at V.T.C.S. art. 4542a-1.
119(c)). Section 19(c) and section 5.09(a) are provisions In par1
materia which should be CoriE~truedtogether. Calvert v. Fort Worth
National Bank, 356 S.W.Zd 918 (Tex. 1962); State Board of Dental
Examiners V, Fenlav. 357 S.W.Zd 185 (Tex. Civ. App. - Dallas 1962, no
VI-it).
The Pharmacy Act does not prevent a physician from charging a
aeparllceree tar adnU.niSteY~ii``~ \r.T.ti;.S.
art. 4 ~--s-l``
"Admlnlster"
means the direct application of a prescription
drug by injection,, inhalation, ingestion, or any
other means to the body of a patient by:
0 a practiM&ner or an authorized agent
under his supervIsion; or
(W the pat:lent at the direction of a
practitioner.
Id. 15(2). Nor Is a physicl.anbarred from dispensing or distributing
~scriptioa drugs to his own patients. Id. 119(a),(c). The relevant
terms are defined as follows: 7
(16) 'Dispense' means preparing, packaging,
compounding, or labeling for delivery a
prescription drug or device in the course of
nrofessional
. nractice io an ultimate user or his
agent by or pursJ;mt to the lawful order of a
oractltioner.
p. 1381
Dr. Carlos D. Codinex - Page ,b (JM-304)
(17) ‘Distribute’ means the delivery of a
prescription dNg or device other than by
administering or dispensing. (Emphasis added).
Id. 55(16), (171. However. he may not “operate e pharmacy for the
?6&iling of prescription drugs.” Id. 119(c): see also V.T.C.S. art.
4495b. 55.09(s). If a physician se% drugs to individual patients,
even at cost, the pharmacy, act considers him to be operating a
pharmacy for the retailing of drugs. - See Attorney General Opinion
MW-410 (1981).
Attorney General Opinion MW-410 (1981) construed section 19(c) of
the Texas Pharmacy Act to prohibit the physician from charging a
separate fee for drugs provided to the patient for self-medication.
The opinion states as follow:
We believe a physlc:Lanwho charges a separate fee
for dispensing dNgS t0 a patient for
self-medication engages in the retailing of drugs.
When a physician retails drugs, he is engaging in
the practice of pharmacy within the statutory
definition. A physician may. however, administer
drugs directly to IXLSpatients, see sections 5(g),
19(d). and we believe he maymake a separate
charge for so d’o:Lngwithout engaging in the
practice of pharmayf.
~ectio````e~e~ca``~a~tice Act. ConstNed in
pari materis with section 19(c) of the Pharmacy Act, prohibits a
physician from charging a fee to cover the cost of drugs supplied to a
patient for self-medication. unless such physician practices in “a
rural ares” as defined In article 5.09(b).
You also ask:
2. If a physician may not be reimbursed for
the cost of a drug product supplied to a patient
under the clrcumutances described in the first
question, are thaw any circumstances under which
a physician may be reimbursed for the actual costs
to the physician of a drug product supplied to a
patient to meet the patfent’s immedfate needs,
other than the* cfccumstances described in the new
Section 5.09(b) oi’ the Medical Practice Act. which
addresses the authority of rural physicians to
dispense dangerous drugs?
Section 5.09(b) and an identical provision codified as section
33(c) of article 4542a-1, V.T.C.S.. authorize a physician vho
practices in a “rural area” to dispense dangerous drugs to his
patients and be reimbursed for the cost of supplying the drugs.
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Dr. Cerlos D. Godinex - Page 5 (JM-304)
“Rural *reel’
is defined rer;trictlvely. This narrow exception wes
enacted to exempt rural physicians from the prohibition against
charging a separate fee For prescription medicine supplied to
patients. See Bill Anslys~ilito House Bill No. 1474, prepared for
House Committee on Public Realth, filed in Bill File to Rouse Bill No.
1474. Legislative Reference 'LLbrary (bill which included 85.09(b) of
article 4495b. V.T.C.S.. end 133(c) of article 4542a-1, V.T.C.S.).
Section 5.09(b). as an exception to e general prohibition, should
be strictly construed. --
liunslqer v. Boyd, 26 S.W.2d 905 (Tex. 1930).
Corpus Christi v. McClaugher~r, 284 S.W.2d 927 (Tex. Civ. App. - San
Antonio 1955. writ ref'd). Unless he complies with the various
requirements of section 5.OS(b), a physician who is not a licensed
pharmacist may not be reimbursed for the cost of drugs supplied to
meet a patient's immediate needs.
SUMMARY
A physician who supplies dangerous drugs or
controlled substances to a patient under authority
of section 5.09(a). article 4495b. V.T.C.S.. may
not be reimbursed Eor the cost of the product
supplied. Section 15.09(b) provides sn exception
permitting rural physicians who come vithin its
terms to charge o fee for the cost of drugs
supplied to patients.
Attorney General of Texas
TOMGREBN
First Assistant Attorney General
DAVID R. RICEAXDS
Executive Assistant Attorney General
RICX GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 1383
Dr. Carlos D. Godlnez - Page 6 (JM-304)
APPROVED:
OPINION COMMITTEE
Rick Cilpin. Chairman
Susan Garrison
Jim Moellinger
Jennifer Riggs
p. 1384