On October 6, 2010, the Drug Enforcement Administration (DEA) published a Statement of Policy, effective immediately, regarding the procedure by which a DEA registered practitioner may use an agent, including a nurse in a long-term care facility (LTCF), to communicate controlled substances prescriptions to a pharmacy. This policy will allow certain prescriptions for controlled substances ordered at LTCFs to be communicated to the pharmacy in a more efficient and timely manner. Importantly, the requirements mentioned in the policy reinforce the DEA’s existing statutory and regulatory requirements as to the proper role of duly authorized agents rather than establish a new law.
The DEA makes clear that while the core responsibilities of prescribing controlled substances may not be delegated, an individual practitioner may authorize an agent to communicate such prescriptions to a pharmacy in order to make the prescription process more efficient. The policy sets forth specific acts that an agent, including a nurse in a LTCF, may take in connection with controlled substance prescriptions which include the following:
- An agent may prepare a written prescription for the signature of the practitioner, provided that the practitioner, in the usual course of professional practice, has determined that there is a legitimate medical purpose for the prescription and has specified to the agent the required elements of the prescription.
- An agent may telephone a pharmacy concerning a prescription for a controlled substance in schedules III through V and convey the practitioner’s otherwise valid oral prescription, provided the prescriber has specified all required prescription information. Note that schedule II medications, which include most narcotic painkillers, are excluded.
- Where otherwise permissible to fax a controlled substance prescription to a pharmacy, the agent may do the actual faxing.
The policy reiterates the DEA’s definition of an agency relationship as it pertains to a practitioner and those duties which may be delegated to another individual.1 The DEA states that in the absence of an employeremployee relationship, practitioners may designate one or more individuals within an LTCF to act as their agent, provided that practitioners:
- assess the level of control they are able to exercise over the agent, as well as the agent’s licensure status, level of training, experience and other factors, to determine if the individual is a suitable agent; and
- ensure that the individual will not engage in activities that exceed the scope of an agency relationship.
The DEA further states that it is in the best interests of the practitioner, the agent and the dispensing pharmacist that the designation of those persons authorized to act on behalf of the practitioner and the scope of any such authorization be reduced to writing. Additionally, the DEA recommends that each practitioner, agent and pharmacy that receives prescription orders from the agent maintain a copy of the signed agency agreement. The policy provides a sample written agreement that the DEA would find adequate; however, providers and agents may both want to include additional provisions addressing, among other things, limitations on liability, insurance and indemnification.
Although there is no reason that a single agency agreement with multiple physicians and multiple nurses as signatories would not meet the Statement of Policy, we do not recommend that approach. By law, a prescribing physician can revoke an agency agreement at any time, and of course, it is also likely that some listed authorized agents (eg, nurses), may leave the employment of a LTCH. In those circumstances, it would be difficult to revoke the agency relationship without securing a new agreement that drops that “agent” and reestablishes the “agents” who remain as agents. Thus, we recommend that LTCFs, at a minimum, utilize a separate agency agreement for each physician, which will identify all agents who the physician has authorized to act on his/her behalf. Even then, a LTCF will face the revocation issue, when a designated agent leaves the employment of the LTCF. Consequently, the better approach is to establish a separate agency agreement for each physician-agent relationship. Then, when a physician wants to revoke the agency relationship for that specific agent, or when a specific agent leaves the employment of the LTCF and no longer acts on behalf of that physician for patients at the facility, the agreement can easily be revoked without calling into question the other agency agreements that are used at the LTCF.
Impact of Policy on LTCFs
By allowing LTCF nurses to serve as agents to the prescribing physician, the policy will allow orders for certain controlled substances at LTCFs to be communicated to the pharmacy in a more efficient and timely manner. Thus, LTCF patients will now be at a much lower risk of encountering delays for medications. While the policy is a step in the right direction, nursing homes will still face challenges for schedule II controlled substances.