AGO Opinion 97034
Neb. Rev. Stat. § 71-1721 (1996); Controlled Substance Prescribing Authority of Advanced Registered Nurse Practitioners
DATE: June 10, 1997
SUBJECT: Neb. Rev. Stat. § 71-1721 (1996); Controlled Substance Prescribing Authority of Advanced Registered Nurse Practitioners
REQUESTED BY: Deb Thomas, Director Department of Health and Human
Services Regulation and Licensure
WRITTEN BY: Don Stenberg, Attorney General
James D. Smith, Assistant Attorney General
You have asked the following questions concerning Neb. Rev.
Stat. § 71-1721:
1. Aside from the limitations in Schedule II, are Advanced
Registered Nurse Practitioners ("ARNPs") authorized under
Nebraska law to prescribe controlled substances in
Schedules III, IV, and V?
2. Are ARNPs authorized under Nebraska law to dispense
sample medications which are controlled substances?
3. If the answer to No. 2 is in the affirmative, which
schedules of sample medications controlled are ARNPs
authorized to dispense?
1. Yes, ARNPs are authorized under Nebraska law to prescribe
Schedule III, IV, and V controlled substances provided the
prescribing ARNP has a current controlled substance registration
from the Department as required by Neb. Rev. Stat. § 28-407.
2. Yes, an ARNP with a current controlled substance
registration may dispense, incident to practice only, sample
controlled substances which are provided by the manufacturer and
are provided at no charge to the patient.
3. Schedule III, IV, and V controlled substance samples may
be dispensed. Dispensing of any Schedule II samples is permitted
only for a maximum 72 hour supply for purposes of pain control.
Neb. Rev. Stat. § 71-1721 provides in relevant part as
. . . . Advanced registered nurse practitioner practice shall
mean health promotion, health supervision, illness prevention
and diagnosis, treatment, and management of common health
problems and chronic conditions, including:
. . .
(2) Dispensing, incident to practice only, sample medications
which are provided by the manufacturer and are provided at no
charge to the patient; and
(3) Prescribing therapeutic measures and medications, except
controlled substances listed in Schedule II of section 28-405
not otherwise provided for in this section, related to health
conditions within the scope of practice. An advanced
registered nurse practitioner may prescribe controlled
substances listed in Schedule II of section 28-405 used for
pain control for a maximum seventy-two-hour supply if any
subsequent renewal of such prescription is by a licensed
Neb. Rev. Stat. § 71-1721 is part of the Nebraska Advanced
Registered Nurse Practitioner Act. The above language of Section
71-1721 was adopted as part of Laws 1996, LB 414, which was a
comprehensive amendment of previous Nebraska nurse practitioner
"Controlled substances" are defined by Neb. Rev. Stat. § 28-
401 as being "a drug, substance, or immediate precursor in
Schedules I to V of Section 28-405." Neb. Rev. Stat. § 28-405,
which is part of the Nebraska Uniform Controlled Substances Act,
lists all drugs and substances which are controlled substances and
classifies them under one of five schedules. Schedule I controlled
substances are substances which have a high potential for abuse,
and which have no accepted medical use in treatment or lack
accepted safety for use in treatment under medical supervision.
Schedules II through V controlled substances are drugs which have
accepted medical use in treatment but varying potential for abuse
and addiction depending on the particular classification schedule.
Schedule II controlled substances are those with high potential for
abuse and dependence. Schedule III, IV, and V controlled
substances have lesser potential for abuse and dependence with
Schedule V controlled substances having the least potential for
abuse and dependence of all the controlled substance schedules.
Section 71-1721 uses the word "medications", rather than the
term "controlled substances", for ARNP prescribing and dispensing
authority. The term "medications" is not specifically defined in
the Advanced Registered Nurse Practitioner Act. The term
"medications" is also not defined by Neb. Rev. Stat. § 49-801,
which is the statute containing general definitions for use with
all Nebraska statutes. Thus, the question is the proper statutory
construction in determining whether the word "medications" includes
"controlled substances" in the limited context of Neb. Rev. Stat.
In construing a statute, statutes relating to the same subject
matter are to be construed together so as to maintain a consistent
and sensible scheme. Chrysler Corp. v. Lee Janssen Motor Co., 248
Neb. 281 (1995). As stated by the Nebraska Supreme Court, "Like
people, words are known by the company they keep. . . and thus take
meaning from the words with which they are associated." John
Markel Ford v. Auto-Owners Ins. Co., 249 Neb. 286 (1996).
The company kept by the word "medications" in Section 71-1721
is the word "prescribing". The Legislature also used the word
"except" to place a limit on ARNP medication prescribing authority
for Schedule II controlled substances. The word "except" appears
in context as an exclusion from broader "prescribing medications"
The terms "prescribe" and "prescription" are terms of art.
The terms "prescribe" and "prescription", when referring to drugs,
typically mean drugs which can be obtained from pharmacies only by
an order from a licensed medical practitioner who has legal
authority to issue such an order or "prescription". A
"prescription" from an authorized licensed practitioner isn't
needed for a patient or consumer to obtain noncontrolled, over-the-
counter medication from a pharmacy.
A "prescription" is needed for a pharmacist to dispense a
controlled substance. See, Neb. Rev. Stat. § 28-414. A
"prescription" is also needed for certain "legend" drugs. Neb.
Rev. Stat. § 28-1437. Section 28-401(11) of the Nebraska Uniform
Controlled Substance Act defines "prescribe" as the act of a
"medical practitioner licensed under the laws of this state in
issuing an order, prescription, or direction to a pharmacist or
pharmacy to dispense a drug as required by the laws of this state".
Thus, the Legislature's use of the words "prescribing" in company
with "medications" in Section 71-1721 signifies an intention to
grant ARNPs broader authority than simply placing orders for over-
the-counter medications which patients could obtain on their own
absent any order from an ARNP.
It also makes little sense that the Legislature intended ARNPs
to have limited Schedule II pain prescribing authority while
simultaneously intending that ARNPs have no prescribing authority
for Schedule III through V controlled substances, which latter
schedules are for less addictive and less dangerous drugs than
Schedule II drugs. There are controlled substances in the
Schedules III through V, such as hydrocodone and dextropropoxyphene
appearing in Schedules III and IV, which can be used for pain
control. The logic of Section 71-1721's limit on ARNP prescribing
Schedule II prescribing authority is not to require ARNPs to
prescribe highly addictive and dangerous Schedule II drugs, instead
of less addictive and dangerous Schedule III through V drugs, to
alleviate pain. Rather, the logic of the statutory limit on
Schedule II prescribing authority is that it is intended to be an
exclusion from broader general authority to prescribe controlled
Thus, the reasonable and necessary construction of Section 71-
1721 is that ARNPs may prescribe Schedule III through V controlled
substances. ARNPs have limited Schedule II prescribing authority
as specified by the statute.
Applying the above logic, ARNPs may also dispense Schedule III
through V sample controlled substances, incident to practice only.
The prescribing restrictions on Schedule II controlled substances
also apply to dispensing of sample medications. There is no
indication of any Legislative intent to permit ARNPs to dispense
more or less than they could prescribe. Rather, the intent appears
to be to allow ARNPs to dispense what they can prescribe provided
what they are dispensing is only incident to practice, are samples
which are provided by the manufacturer, and there is no charge to
the patient for the samples.
A final caveat is mentioned. Section 28-407(1) of the
Nebraska Uniform Controlled Substance Act requires every person who
prescribes, distributes, or dispenses controlled substances to
obtain a controlled substance registration issued by the Department
in accordance with the Department's rules and regulations.
Among the purposes of the Uniform Controlled Substances Act is
Another object of this Act is to establish a closed regulatory
system for the legitimate handlers of controlled drugs in
order to better prevent illicit drug diversion. This system
will require that these individuals register with a designated
State agency, maintain records, and make biennial inventories
of all controlled drug stocks.
Uniform Controlled Substances Act, Prefatory Note.
Even though Neb. Rev. Stat. § 71-1721 provides a general scope
of authority for ARNPs to prescribe controlled substances as
discussed in this opinion, Section 28-407 imposes the additional
specific requirement that each ARNP possess a controlled substance
registration issued by the Department prior to actually prescribing
or dispensing controlled substances. Title 172, Neb. Admin. Code,
Chapter 129 contains the Department's regulations for controlled
substance registrations. Specifically, 172 NAC 129:003.01B lists
the categories of licensed professionals who may obtain a
controlled substances registration from the Department under the
authority of Neb. Rev. Stat. § 28-407. 172 NAC 129:003.01B does
not include current Nebraska licensed ARNPs among the licensed
professionals who can obtain a controlled substance registration
from the Department. Thus, the Department may want to consider
reviewing and amending its regulations.
James D. Smith
Assistant Attorney General