No. 4 (1969)
Number 4. August 2, 1968
Cite as Mass. Op. Att'y Gen. No. 4, Rep. A.G., Pub. Doc. No. 12 (1969)
Number 4.
August 2, 1968
MRS. HELEN C. SULLIVAN
Director of Registration
Department of Civiffi&xvice and Registration
State Office Buildings-Government Center
100 Cambridge Street
Boston, Massachusetts 02202
Dear Mrs. Sullivan:
You have requested my opinion
as
to
the
legal
effect,
if any, of a certain
memorandum
of
understanding upon
Rule
49,
Item
22,
of
the
Rules and
Regulations of the Board of Registration in Pharmacy.*
The following facts are set forth in your letter:
"The Board as authorized by S. 42A of C
1 12 of the General Laws
as amended by C 634
of
the
Acts
of 1960 adopted
Rules and
Regulations
of Professional Conduct on September 29,
1961
and
filed with the Secretary of State on the same day. The thirty Rules
under
the
Code
of
Professional
Conduct
for
Pharmacy
were
designated
as Rule 49
effective July
12,
1966, and
filed with the
Secretary of State on that date.
"Item #22 of Rule 49 reads
as follows:
'A Registered Pharmacist
connected
with and employed by
a
hospital
or
clinic
shall only
dispense medicines or drugs to in-patients, and to out-patients who
are under the immediate treatment of the hospital or clinic'
"On February
20,
1962 a memorandum of understanding between
the Department of Public Health and the Board of Registration
in
Pharmacy
was
executed. A
copy
of
a
signed
agreement
(the
agreement) by
the Secretary of the Board Mr. Anthony P. Giuggio
and
Dr. A. Daniel Rubenstein of the Department of Public Health
relative
to
this memorandum
is enclosed
for your perusal.
In
this
agreement comment on Item #22 of Rule 49 (Code of Professional
Conduct) reads as follows:
"
'Under
this
Rule
the
hospital
pharmacist may dispense
to any
Initially you
also requested my opinion about the
legal effect of Item 22
itself.
It
is my
understanding, however, based on
a recent
letter received from you by the Chief of our Ad-
ministrative Division, that you no longer seek my opinion on this question.
P.D. 12
37
employee for his own use and for the use of his spouse and children
living in the same household with him medicines and drugs as part of
his employment agreement and to a student medicines and drugs as
part of the student agreement. Prescriptions must be written by a
Staff Physician in the hospital.'
"The Agreement was not adopted by the Board as a regulation or
filed with the Secretary of State. Item #22 of Rule 49 has never
been amended."
It
is clear from the
facts disclosed
in your letter that the memorandum of
understanding
had
no
effect
on
the
terms
of Item
22
of
Rule
49. Any
amendment of Item 22 would require
action by
the Board of Registration in
Pharmacy
in
accordance
with
the
rule-making
provisions
of
G.L.
c.
30A,
including the
filing of the amendment with the State Secretary as provided in
G.L.
c. 30A, §
5, and G.L. c. 30, § 37. Your letter indicates that there has been
no compliance with these statutory requirements.
I do not mean to imply, however,
that Item 22
in
its unamended form
is
necessarily
valid. Before any attempt
is made
to enforce Item
22, the Board
should
be
prepared
to
establish
factually
that
it meets
the
test
of validity
enunciated by the Supreme Judicial Court in Milligan v. Board of Registration in
Pharmacy, 348
Mass.
491,
498:
namely,
that
it "has a rational tendency
to
promote
the
safety health, morals and general welfare of the public." In the
absence of further information
I am, of course, unable to express any opinion at
this time on whether Item 22 of Rule 49 meets this test.
Very truly yours,
ELLIOT L. RICHARDSON
A ttorney General