No. 4 (1969)

Number 4. August 2, 1968

Year: 1969Length: 615 wordsOfficial source

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
No. 4 (1969): Number 4. August 2, 1968 | Justis AI