Attorney General Opinion
January 7, 1985
Elliott J. King
Executive Secretary
Nevada State Board of Pharmacy
1201 Terminal Way, #212
Reno, NV 89502
F. Fuller Royal, M.D.
President
Nevada State Board of Homeopathic
Medical Examiners
P.O. Box 26865
Las Vegas, NV 89126
Gentlemen:
Each of you has requested an opinion
from this office on an identical issue under Nevada law. For
this reason, each of your opinion requests will be responded
to by this opinion letter jointly given by the undersigned,
your assigned respective counsel in our office.
QUESTION
Under what circumstances, if any,
may a licensed homeopathic physician prescribe, administer,
dispense or possess a controlled substance or dangerous drug?
ANALYSIS
NRS 453.226(1) provides that:
"Every practitioner or other
person who dispenses any controlled substance within this state
or who proposes to engage in the dispensing of any controlled
substance within this state shall obtain biennially a registration
issued by the board in accordance with its regulations."
(Emphasis added.)
NRS 639.235(1) additionally provides
that:
"No person other than a practitioner holding a currently
valid license to practice his profession in this state may prescribe
or write a prescription, except that a prescription written
by a physician not licensed to practice in this state but authorized
by the laws of another state to prescribe shall be considered
to be a legal prescription." (Emphasis added.)
Further, a "practitioner"
is authorized to possess, administer, and dispense
controlled substances by NRS 453.375(1)(a)
and 453.377(3). Similarly, a "practitioner" is
authorized to possess, administer, and dispense dangerous drugs
by NRS 454.213(1) and
454.215(3). Also, NRS 454.221 provides that dangerous drugs
may only be furnished upon the prescription of a "practitioner,"
or by a "practitioner" without a prescription to his
own patients as provided in NRS 454.301. NRS 453.061 defines
a "dispenser" as a "practitioner" who dispenses.
Clearly, then, unless a homeopathic
physician is considered a "practitioner" under Nevada
law, he may not prescribe, administer, dispense or possess a
controlled substance or a dangerous drug.
Both NRS 639.0125(1) and 454.00958
define a "practitioner" as a physician, dentist, veterinarian
or podiatrist who holds a valid license to practice their respective
professions in this state. NRS 453.126(1) similarly defines
a "practitioner" to be:
"[a] physician, dentist, veterinarian
or podiatrist who holds a valid license to practice his profession
in this state and is registered pursuant to this chapter."
Thus, it is equally clear that if
a homeopathic physician is considered to be a "physician"
for the purposes of Chapters 453, 454, and 639 of NRS and as
that term is used in the above definitions, then a homeopathic
physician would constitute a "practitioner."
Both NRS 453.371(2) and 454.0095
define a "physician" to be a person authorized by
a currently valid license to practice his respective profession
in this state, with NRS 453.371(2) adding the language "who
are registered with the board" thereafter. At first glance,
these definitions would seem to resolve the issue in favor of
homeopathic physicians constituting "physicians" and
hence "practitioners" for the purposes of Chapters
453, 454, and 639 of NRS.
However, NRS 0.040 provides as follows:
"1. Except as otherwise provided
in subsection 2, as used in Nevada Revised Statutes, 'physician'
means a person who engages in the practice of medicine, including
osteopathy.
"2. The terms 'physician,' 'osteopathic
physician,' 'homeopathic physician' and 'chiropractic physician'
are used in chapters 630, 630A, 633, and 634 of NRS in the limited
senses prescribed by those chapters respectively."
NRS 0.010 further provides that:
"This chapter provides
definitions and declarations of legislative intent which apply
to Nevada Revised Statutes as a whole."
It is a general and long recognized rule of statutory construction
that statutes relating to the same subject matter are to be
construed so as to give each a reasonable effect in accordance
with the intention behind them. State ex rel. Flack v. Rogers,
10 Nev. 319 (1875); In the Matter of Ah Pah, 34 Nev. 283, 119
P. 770 (1911); State ex rel. Abel v. Eggers, 36 Nev. 372, 136
P. 100 (1913); City of Reno v. Stoddard, 40 Nev. 537, 167 P.
317 (1917).
In NRS 0.040 and 0.010, the Nevada
legislature has specifically set forth its definition of "physician"
and declared its intent that such definition is to apply to
NRS as a whole. Thus, "physician" means a person who
engages in the practice of medicine, including osteopathy. However,
the legislature did not include the practice of homeopathy therein.
Further, NRS 0.040(2) specifically provides that the term "homeopathic
physician" is used in Chapter 630A of NRS in the limited
sense prescribed by that chapter. The clear meaning of NRS 0.040(2),
when compared with 0.040(1), is that while a "homeopathic
physician" may be a "physician" for purposes
of Chapter 630A, they are not "physicians" for the
purposes of the rest of NRS wherein the term "physician"
is used. If the legislature had intended otherwise, it would
have expressly included homeopathy as it did with osteopathy.
It is important to note that when the legislature amended NRS
0.040(2) to include "homeopathic physician" and a
reference to the new Chapter 630A, it did not amend subsection
1 of the same statute, even though it clearly had the opportunity
to do so. Further, our review of the legislative history behind
said amendment to NRS 0.040(2) and the enactment of Chapter
630A of NRS in general revealed no expression of legislative
intent contrary to that explicitly stated in NRS 0.010 and 0.040.
Expression of one thing in a statute
excludes all others. State v. Baker, 8 Nev. 141 (1872); Galloway
v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967). In construing
the language of a statute, the words therein must be given the
meaning intended by the legislature. Phillips v. Eureka County,
19 Nev. 438, 11 P.32 (1886). In the absence of any reason to
the contrary, it must be presumed that the legislature used
the words in the statute according to their usual meaning. Comstock
Mill & Mining Co. v. Allen, 21 Nev. 325, 31 P. 434 (1892).
Thus, these words must be given their plain, common meaning.
In re: Filippini, 66 Nev. 17, 202 P.2d 535 (1949); Orr Ditch
Co. v. Dist. Ct., 64 Nev. 138, 178 P.2d 558 (1947); In the Matter
of Zwiss; 42 Nev. 360, 178 P. 20 (1919).
Hence, a "homeopathic physician"
is such only for the purposes of Chapter 630A of NRS and is
not a "physician" for the purposes of Chapters 453,
454, and 639 of NRS.
Therefore, a "homeopathic physician" is not a "practitioner"
for the purposes of these chapters and may not prescribe, administer,
dispense or possess a controlled substance or dangerous drug
as a "homeopathic physician."
This result under NRS 0.040 is not
nullified by any federal drug law. Federal drug control and
enforcement law specifically provides that:
"No provision of this title
shall be construed as indicating an intent on the part of the
Congress to occupy the field in which that provision operates,
including criminal penalties, to the exclusion of any State
law on the same subject matter which would otherwise be within
the authority of the State, unless there is a positive conflict
between that provision of this title and that State law so that
the two cannot consistently stand together." 21 U.S.C.
§ 903.
It is clear that concurrent jurisdiction
with the state in the control of narcotics and dangerous drugs
is intended by this statute. Ledcke v. State, 296 N.E.2d 412,
(Ind. 1973). There is no federal preemption of the field of
narcotics control by virtue of 21 U.S.C. §§ 801, et
seq. State v. McHorse, 517 P.2d 75, (N.M. 1973). Moreover, the
United States Supreme Court has consistently recognized the
broad power of a state to regulate the narcotic drug traffic
within its borders notwithstanding these federal laws on the
same subject matter. Whipple v. Martinson, 256 U.S. 41, 41 S.Ct.
425, 65 L.Ed. 819 (1921); Robinson v. State of California, 370
U.S. 660, 664, 82 S.Ct. 1417, 1419, 8 L.Ed.2d 758 (1962). Further,
the federal regulations on these drug laws define an "individual
practitioner" as "a physician . . . licensed, registered,
or otherwise permitted, by the United States or the jurisdiction
in which he practices, to dispense a controlled substance in
the course of professional practice . . . ." 21 C.F.R.
§ 1304.02(d). (Emphasis added.)
At this point in the analysis it
must also be pointed out that, under present Nevada law, a licensed
homeopathic physician must also be licensed to practice allopathic
or osteopathic medicine. NRS 630A.230. Clearly under the above
statutes and analysis, if one is licensed in this state to practice
allopathic or osteopathic medicine, he would be a "physician,"
and therefore a "practitioner," for the purposes of
Chapters 453, 454, and 639 and qualified to be registered to
prescribe, administer, dispense or possess controlled substances
or dangerous drugs as an allopath or osteopath.
However, NRS 453.381(1) provides
that a physician may prescribe, administer or dispense controlled
substances only for a legitimate medical purpose and in the
usual course of his professional practice. Thus, while conceivably
a physician licensed to practice allopathic or osteopathic medicine
in this state could also be licensed as a homeopathic physician,
any lawful prescribing, administering, dispensing, or possessing
of controlled substances must be for a legitimate allopathic
or osteopathic medical purpose and in the usual course of such
professional practice, and not for any homeopathic purpose or
practice.
CONCLUSION
Since under present Nevada law a
homeopathic physician is not deemed to be a "physician"
for the purposes of Chapters 453, 454, and 639 of NRS, a homeopathic
physician may not be registered pursuant to said chapters to
prescribe, administer, dispense or possess a controlled substance
or dangerous drug. However, a homeopathic physician also licensed
in Nevada as an allopathic or osteopathic physician may be
registered pursuant to said chapters
to prescribe, administer, dispense and possess controlled substances
and dangerous drugs, but he may do so only for a legitimate
allopathic or osteopathic medical purpose and only in the usual
course of his allopathic or osteopathic professional practice.
Very truly yours,
BRIAN McKAY, ATTORNEY GENERAL
By:_________________________________
P. Gregory Giordano
Deputy Attorney General
Counsel to Nevada State Board of Pharmacy
By:_________________________________
Robert Balkenbush
Deputy Attorney General
Counsel to Nevada State Board of
Homeopathic Medical Examiners
