PRESCRIPTIVE AUTHORITY ISSUES

(65/65-40. Prescriptive authority.)

 

In Illinois, any licensed health professional who wishes to prescribe controlled substances must possess three things: (a) a professional license that authorizes him or her to do so, (b) an Illinois Controlled Substance License (CSL) which comes from IDFPR and, (c) a federal Drug Enforcement Agency (DEA) number. Theoretically, APNs who do not ever intend to prescribe controlled substances are not legally required to obtain a CSL or DEA number.  However, having a DEA number on a prescription—even for a non-controlled substance—greatly facilitates a patient’s getting the prescription filled. While the practice is controversial, most reimbursers, including Medicaid, will not pay for a prescription without a DEA number, because they use that number for tracking purposes. Furthermore, pharmacists are more comfortable filling prescriptions with DEA numbers, because it provides some assurance that the APN prescriber does indeed have prescriptive authority.  As a result, if a pharmacy does not have an APN’s DEA number on file, most pharmacists will ask for it, even if the prescription is not for a controlled substance.

 

My suggestion is that all Illinois APNs endeavor to obtain a CSL and DEA number, even if they never will prescribe a controlled substance.  When one applies for both documents, s/he must indicate which Schedule level s/he is authorized to prescribe.  Simply by applying for the "lowest” Schedule (i.e. Schedule V), s/he will still get a DEA number. This may be an acceptable compromise between an APN and certain collaborating physicians, because it will facilitate the APN’s writing prescriptions, while the physician may feel more comfortable delegating authority to only those drugs with the lowest abuse potential.

 

It should be noted that there is a difference between being a "prescriber” versus a "transcriber.”  All RNs in Illinois have the authority to be a "transcriber,” meaning that they can provide a prescription in the same way that they write a verbal order in a hospital where they sign the order (prescription) with the doctor’s name/their name (e.g., J. Jones, MD/J. Doe, RN). Of course, no RN (including an APN) should ever sign a prescription in this manner unless s/he has been specifically authorized to do so by the physician whose name appears on the prescription.

 

However, prescriptions signed in this manner are considered to have been "written” by the physician. Since APNs are RNs, they too might provide prescriptions in this manner, and some institutions and physicians rely on this system rather than delegating prescriptive authority in the APN’s collaborative agreement. The problem with an APN’s being relegated to the transcriber status is that it fosters the invisibility of typical APN practice to the rest of the world, and denies a key distinction between an RN and an RN/APN; namely, that APNs are educated to be prescribers. It poses logistical problems, too, since pharmacists will consider the physician to be the prescriber, and will call the physician—not the APN—if there are questions about how the prescription is written. 

 

It should also be noted that the Nursing Act allows the prescription and dispensing of legend drugs and legend controlled substances.  The word "dispensing” is significant, because in the past "dispensing” was considered the purview of only pharmacists and physicians.  The purpose of including the word "dispense” was to clarify that APNs could sign for samples of medications provided by the sales staff of pharmaceutical companies, as well has hand such samples to patients. This fact sometimes must be pointed out to pharmaceutical representatives, whose sales area may include more than one state, and not every state practice act contains the provision for APNs to dispense.

 

As noted previously, in Illinois, any health professional who wishes to prescribe controlled substances must possess an Illinois CSL and a federal DEA number.  The CSL must be obtained first and information about that process is available on the IDFPR website. Immediately upon receiving the CSL, the APN should submit an application for the DEA number.  It is possible to apply for a DEA number online—if one is willing to use a credit card for payment.  Alternatively, one can print the application forms (PDF format—must have Adobe Acrobat Reader software) and submit the information and payment by mail. Needless to say, submitting an application online usually results in receiving a DEA number more quickly.

The DEA lumps APNs and Physician Assistants under the umbrella term "Mid-Level Practitioners” (MLPs).  Controlled substances fall into certain classes, "narcotic” or "non-narcotic”, and are assigned to certain categories, called "schedules,” ranked from Schedule I to Schedule V.  The schedule numbers are in inverse order of their restrictiveness.  Schedule I controlled substances have no accepted medical use in the U.S. and are considered to have a high abuse potential. Examples include heroin, LSD, peyote and—in the DEA’s opinion--marijuana.  Schedule V substances are considered to have the least abuse potential and consist primarily of preparations containing limited quantities of narcotic and stimulant drugs, such as those used for antitussive, antidiarrheal, and analgesic purposes.  A more complete list of which narcotics fall into which Schedules can be found on the DEA website in the instructions for completing the DEA application.

In Illinois, MLPs have delegated prescriptive authority.  Therefore, an APN’s authority must be noted in the written collaborative agreement that is signed by the APN and her/his collaborating physician(s).  For PAs, that authority must be delegated by the PA’s supervisory physician(s).  (More about the distinctions between APNs and PAs is provided elsewhere.) If the collaborating physician intends to delegate prescriptive authority for non-scheduled drugs (also called "legend” drugs) and scheduled drugs, that authority must be clear in the APN’s collaborative agreement in order for the APN to apply for a CSL and DEA number. 

While the 1991 Nursing Act was historic in its scope of authority for APNs, there was one notable shortcoming; namely, it limited an APN’s authority to prescribe scheduled drugs to only Schedules III, IV, and V. Thus, those APNs who cared for patients with ADHD or worked in settings involving pain control faced a huge challenge to their practice.  While Illinois APNs have not completely won the battle of full plenary prescriptive authority, the 2007 Nursing Act did open the door for prescribing Schedule II drugs.  A collaborating physician or podiatrist may (but is not required to) delegate authority to an APN to prescribe up to 5 Schedule II controlled substances by oral dosage.  These substances must be those that the collaborating physician or podiatrist prescribes in his/her practice.  Other restrictions include:

"Any prescription must be limited to no more than a 30-day oral dosage, with any continuation authorized only after prior approval of the collaborating physician” (65/65-40, d, 3).

"The advanced practice nurse must discuss the condition of any patients for whom a controlled substance is prescribed monthly with the delegating physician” (65/65-40, d, 4).

While this language regarding Schedule II substances is ponderous, it certainly is a step in the right direction. However, it must be noted that no APN should be writing prescriptions for Schedule II substances yet! First of all, as has been noted previously, these finer points in the Nursing Act are not really law until Rules have been written to hammer out the details.  Secondly, since the passage of the new Nursing Act in October, 2007, we learned that the DEA had some "issues” with the new language of the Act, the details of which have not become public knowledge. The Illinois Society for Advanced Practice Nursing’s lobbying team was able to pass a bill in 2009 to rectify this discrepancy and we await final word that the DEA has made the adjustments in DEA applications.

HOW PRESCRIPTIONS SHOULD "LOOK”

 

The nursing act stipulates that the prescriptions written by the APN prescriber need to have the following information (1304.50 Prescriptive Authority):

 

The APN’s name

The APN’s collaborating physician’s name

The APN’s signature, but not the collaborating physician’s signature.

 

The above information is all that is specifically stipulated in the Rules of the Nursing Act. As a result, the appearance of prescription pads that APNs use vary greatly and are largely dependent on where the APN practices. Having the APN’s name and physician’s name commercially printed on the prescription enhances legibility, but having this information pre-printed is not required.  As noted previously, patients have an easier time getting prescriptions filled if the DEA number is included. Some practices have a great deal of information on pre-printed prescription pads such as the name of the practice, the address(es) of the practice, the names of all the prescribers in the practice (e.g., all the doctors and all the APNs), and the DEA number of each prescriber. Some practices, however, are not comfortable with having DEA numbers pre-printed, for fear that the pads might be stolen and used for fraudulent prescriptions. In such practices, the prescriber should hand-write the DEA number. 

 

While not stipulated in either the Nursing Act or Rules, other information has been provided during meetings of the IDFPR APN Board.  For example, in 1998 the DEA informed IDFPR that if the APN is the prescriber, it is never appropriate to affix the collaborating physician’s DEA number on a prescription. In other words, the DEA number must be the one assigned to the person who is considered to be the actual prescriber.  Furthermore, it is acknowledged that pharmacists do not have access to an APN’s collaborative agreement to see if the medication s/he has prescribed is within his or her scope of practice.  Pharmacists are held to a "good faith” standard; namely, if prescription does not appear blatantly incorrect or inappropriate, they are at liberty and expected to fill it. Obviously, it is the APN’s responsibility to see that s/he prescribes only those medications with which that s/he is familiar, are within the scope of practice described in her/his collaborative agreement, and be consistent with the delegation noted in her/his CSL application.

 

Despite an APN’s best efforts, there can be complications in adhering to the law. In 2003, one APN was visited by IDFPR investigators responding to a complaint that she had indicated that she was qualified "to engage in the general practice of medicine.”  The problem arose from the fact that although she was writing prescriptions exactly according to the letter of the law, various pharmacies were putting printed labels on the medication bottles with her name behind the word "Dr.” Obviously, these labels were generated by computer software where the prescriber’s name was typed in a space that followed the template of "Dr.” As the APN worked in a rural practice, she was able to immediately contact every pharmacy where her patients were likely to get their prescriptions filled, about seven sites in all.  The pharmacies’ initial reaction was that they were unable to change the default template.  However, after receiving a written letter from the APN explaining that if they did not find a way to list her by her name, followed by CNP or APN, she would have to insist that the patients take their business elsewhere. Virtually every pharmacy complied with her request within 24 to 48 hours.

Basic Requirements for an APN License

 

When the bill that revised the Nursing Act was negotiated in the years of 1997-1998, there was consensus among all those at the negotiating table that the gold standard of APN credentials should be graduate education and certification in the APN’s specialty. However, there were many APNs at the time who had been practicing for years who could not meet either or both of these standards. The overwhelming majority of practicing CNMs and CRNAs were certified, as their specialties had more or less mandated certification years before; however, many did not have graduate degrees.  Clinical nurse specialists, on the other hand, were generally master’s-prepared, because for years academia had defined the education of the CNS to be at the master’s level. However, only a minority of CNSs were certified. The practice of CNSs varies widely and includes so many subspecialties that if a CNS was certified at all, chances were the certification was a specific nursing subspecialty and available to RNs who were not truly educated as CNSs (e.g., orthopedics, critical care, etc.).  Finally, there was the case of nurse practitioners whose education ran the gamut. In the mid-1960s and early 1970s, some had been trained in 1:1 apprenticeships or employer-based programs that lasted less than a year, while others had bachelor’s or master’s degree preparation. And like CNSs, not all nurse practitioners were certified.

 

When the Nursing Act was passed in 1998, there was "grandfathering” language that would allow those currently practicing to apply for an APN license if they didn’t meet both the certification and graduate education requirements, provided they did so by July, 2001.  At the time, the negotiators for the bill thought a three-year grandfathering provision was reasonable, since they never envisioned that the first APN licenses would not be obtainable until April, 2001.  The window of grandfathering was expected to be three years, not three months.  The grandfathering language was part of the Nursing Act statute, not the Rules; thus, it could be changed only by passing another bill by the Illinois General Assembly, which was not legislatively feasible.  Regrettably, there were some APNs who had not been following the permutations of the Nursing Act over the years and failed to apply by the July, 2001, deadline. As a result, those APNs could no longer use an APN title, nor could they engage in practice that was clearly APN in nature.

 

In 2003, in answer to a serious shortage of anesthesia providers in Illinois, the Nursing Act was revised to grant CRNAs a brief window exempting them from the graduate degree requirement. This exemption was only for those CRNAs who completed their anesthesia program prior to January 1, 1999 and continually maintained active, up-to-date recertification status as a CRNA.  This exemption was designed to especially encourage CRNAs from out-of-state to practice in Illinois and had an expiration date of December 31, 2006. However, the shortage of anesthesia providers had not abated and there was continued interest in removing any barriers for qualified CRNAs who might choose to relocate to Illinois. As a result, in 2009, the Nursing Act was changed again to allow those CRNAs who have been educated before January 1, 1999, and have continually maintained active, up‑to‑date recertification status as a CRNA to be allowed to apply for Illinois licensure until July 1, 2018 (65-5, b-5, Qualifications for APN Licensure).

 

APN and RN License Renewal

 

No one can practice as an APN unless his/her RN and APN licenses are both current. RN and APN licenses are on a 2-year cycle, renewable during the even-numbered years. Although the Nursing Act was revised in 1998, the Rules for the revised language were not promulgated until 2001. As a result, the first APN licenses were issued "off-cycle,” and so were in effect for a one time-only cycle of three years.  Thus, in 2004, the APN license became in sync with RN license cycle. Controlled substance licenses, for the APNs who have them, are also renewable in the even-numbered years.  Renewing these licenses require completing separate applications and paying certain fees for each license. License renewal can be done by mail with check or credit card payment, or over the telephone with a credit card payment only. It should be noted that DEA numbers, however, are renewed every three years, and has this number comes from the federal government, the renewal process is entirely separate from that of an state CSL.

 

 

Changing the Collaborating Physician Named on the Controlled Substance License and DEA Number

Collaborative agreements are null and void if an APN changes jobs or his/her collaborating physician leaves the practice, or for any other reason a physician is no longer available to collaborate with the APN.  When it appears that a collaborative arrangement will be dissolved, the APN should go to the IDFPR website (www.ildfpr.com) and download two documents: (a) Termination of Delegation of Prescriptive Authority, and (b) Delegation of Prescriptive Authority. The "Termination" form has to be signed by the soon-to-be "outgoing" collaborating physician. There is a place to indicate the date that the termination will take place, so the APN should be sure to get this form signed before s/he and the collaborating physician part company. Then the APN should get the "Delegation" form signed by her/his new collaborating physician prior to prescribing under that relationship. These forms will generate a new form from IDFPR which gets mailed to the "outgoing" and "incoming" collaborating physicians to clarify the APN's authority related to her/his controlled substance license. The DEA doesn't need to know about a change in collaborating physicians; that is handled through the controlled substance license. However, the DEA might need to know a change of employment if a former employer’s address that was indicated on the DEA application.