January 7, 1983 Number 5

January 7, 1983 Number 5. Romulus DeNicola, Executive Secretary Board of Registration in Pharmacy 100 Cambridge Street Boston, Massachusetts 02202 Dear Dr. DeNicola: On behalf of the Board of Registration in Pharmacy (hereinafter, "the Board"), you have requested an opinion of the Attorney General on questions relating to Chapter 706 of the Acts of 1981 which altered the provisions of G.L. c. 1 12, §39A, to permit a restricted pharmacy to accept and fill prescriptions by mail. ' Specifi- cally, you wish to know whether Chapter 706 eliminates the requirement that re- stricted pharmacies may accept and fill by mail only those prescriptions issued by physicians registered with the Commissioner of Public Health in accordance with G.L. c. 94C, § 18(c). You also request a description of the changes made by Chapter 706 in the statutory obligations of restricted pharmacies that wish to accept and fill prescriptions by mail. After reviewing the legislative history of Chapter 706 and judicial interpreta- tions of the statute as enacted by the Legislature, I have concluded that Chapter 706 eliminates the former requirement which authorized restricted pharmacies to accept and fill by mail only those prescriptions issued by physicians registered with the Commissioner of Public Health in accordance with G.L. c. 94C, § 18(c). Before filling a prescription by mail, a restricted pharmacy must still verify in accordance with the Board's regulations that the prescribing physician is licensed to practice in Massachusetts or any other New England state, but the pharmacy no longer must determine whether the physician is registered with the Commissioner of Public Health in accordance with G.L. c. 94C, §18(c). Chapter 706 originated with the filing of a petition, S. 613, ^ five days after I issued an opinion on May 5, 1981 . That opinion reconciled minor inconsistencies between G.L. c. 94C, §18(c), and G.L. c. 1 12, §39A, and concluded, inter alia, that a restricted pharmacy may accept and fill by mail prescriptions issued only by those out-of-state physicians who are registered in accordance with the latter statute. Without doubt, the petition was a response to that Opinion and was filed in order to eliminate the requirement of registration for those physicians. Initially, the petition was referred to the Senate Committee on Health Care and thence reported favorably to the Senate Committee on Ways and Means. Mass. S. Jour. 56A, 575 (1981). The Ways and Means Committee redrafted the provision and recommended to the Senate that the bill as amended (and renumbered as S. 2339) ' That amcndnicnl inserted the following language: notwithstanding the provisions of paragraph (c) of section eighteen of chapter ninel> -four C or any other law to the contrary . . . ^ The original pclition provided. Notwithstanding any laws or regulations to the contrary, nothing shall prohibit a restricted pharmacy from accepting and filling prescriptions written by physicians from the Commonwealth of Massachusetts or any New England state by mail; provided, however, that said prescriptions are authentic, in the reasonable professional judgment of the pharmacist. P.D. 12 91 ought to pass. Mass. S. Jour. 1326 (1981). The new draft substituted by the Ways and Means Committee provided: Nothing in this section shall prohibit a restricted pharmacy from accept- ing and filling prescriptions by mail; provided, however, that, notwith- standing any provisions of section 18(c) of chapter 94C to the contrary, the prescribing physician is verified, according to procedures estab- lished by the board, as licensed to practice in the commonwealth or in any New England state. On October 26, 1981, S. 2339 was ordered to a third reading which resulted in some alterations of the Ways and Means Committee draft. The principal change accomplished by the floor amendments adopted during the third reading was the insertion of the phrase "or any other law" after the reference to "section 18(c) of chapter 94C." The measure passed the Senate and went to the House of Rep- resentatives where it was approved without alteration. Mass. S. Jour. 1401 (1981); Mass. H. Jour. 1788, 1794, 1841 (1981). S. 2339 was signed by the Governor on December 24, 1981. Mass H. Jour. 1868 (1981); Mass. S. Jour. 1685(1981). This brief review of the legislative history of Chapter 706 reveals that from the outset the measure contained language which would remove the application of G.L. c. 94C, § 18(c), to prescriptions filled by mail by restricted pharmacies. The original petition, S. 613, began with the words: "Notwithstanding any laws or regulations to the contrary.^ Although the revised draft substituted by the Ways and Means Committee, S. 2339, preserved the exemption contained in the original petition, it substantially narrowed the exemptory language by requiring that "notwithstand- ing any provisions of section eighteen (c) of chapter 94C to the contrary" a re- stricted pharmacy may fill a prescription by mail provided that it first verifies, in accordance with the Board's regulations, that the prescribing physician is licensed to practice in Massachusetts or any New England state. The final language of the measure, after being amended during the Senate's third reading, excludes the oper- ation of not only G.L. c. 94C, § 18(c), but "any other law to the contrary." The conclusion to be drawn from the legislative process which led to the enact- ment of Chapter 706 is clear. The purpose for enacting the measure was to eliminate the obligation of restricted pharmacies to ensure that all prescriptions filled by mail were issued by physicians registered with the Commissioner of Public Health in accordance with G.L. c. 94C, § 18(c). This objective is firmly established by the language selected by the Legislature explicitly exempting pharmacies from deter- mining whether a physician has complied with G.L. c. 94C, §18(c), before it fills by mail a prescription issued by that physician. The key phrase, "notwithstand- ing the provisions of paragraph (c) of section eighteen of chapter ninety-four C or any other law to the contrary," leaves no room for doubt that the procedures to be followed by a restricted pharmacy before it fills a prescription by mail are limited to those established by the Board's regulations for verifying that the prescribing physician is licensed to practice in the Commonwealth or any other New England state. The language of S. 613 was cxlreniemly broad and could have been intcrpreled to exempt restricted pharmacies even from complying with the Board's regulations for verifying that a physician is actually licensed to practice in the Commonwealth or any New England state before filling by mail a prescription issued by that physician 92 P.D. 12 The term "notwithstanding'' means in spite of or without obstruction from any other outside factor. Missouri Pacific Railroad Company v. Rental Storage and Transit Company, 524 S.W. 2d 898, 908 (Mo. App. Ct. 1975); State v. Board ofEducation ofHardin County, 170 Ohio St. 415, 165 N.E. 2d 918, 923 (1960). "[NJotwithstanding [the provisions of G.L. c. 94C, §18(c)] or any other laws to the contrary" therefore means that the provisions of G.L. c. 112. §39A, operate in spite of and without prevention or obstruction from G.L. c. 94C, §18(c), or any other statute establishing a different requirement. Cf Matter of Oswego Barge Corp. , 664 F.2d 327, 340 (2d Cir. 1981); Tug Ocean Prince, Inc. v. United States, 584 F.2d 1 151, 1 162 (2d Cir. 1978) cert, denied, 440 U.S. 959 (1979); State v. Superior Court of County ofLos Angeles, 252 Cal. App. 2d 637, 60 Cal Rptr. 653 (1967). Thus, the plain language, as well as the legislative history of Chapter 706, requires an affirmative answer to your first question. This amendment to G.L. c. 112, §39A, eliminates the requirement discussed by the Attorney General in his earlier opinion that restricted pharmacies may accept and fill by mail only those prescriptions issued by phys'cians registered with the Commissioner of Public Health in accordance with G.L. c. 94C, §18(c). Finally, you ask "[w]hat change in law is mandated by this new statute." Chapter 706 makes only one alteration in the pre-existing law governing restricted phar- macies. It eliminates the restrictions formerly imposed by G.L. c. 94C, §18(c), and any other law to the contrary on the privilege of a restricted pharmacy to accept and fill prescriptions by mail. All other requirements and limitations on the opera- tion of the prescription services of restricted pharmacies remain in force. Very truly yours, FRANCIS X. BELLOTTI Attorney General