The duties of home healthcare and hospice nurses are expansive. Commonly included within these duties is assisting with the administration of medication to their patients. Quite often, these medications are characterized as controlled substances under both Federal and State statutes. This characterization raises a plethora of issues for nurses, who when dispensing or transporting these medications, must thoroughly analyze their conduct to verify that their practices have not otherwise violated applicable law. For example, may a nurse legally dispense medication that constitutes a controlled substance? Can a nurse act as a courier or delivery service for his or her patients by transporting such medication from the pharmacy to the patient’s home? If these actions are taken, what precautions and/or steps must a nurse take in order to be compliant with applicable regulations? This article will discuss and analyze these legal ambiguities.
Illinois Controlled Substances Act
The Illinois Controlled Substances Act (“the Act”) makes it a felony for anyone to transport or possess Schedule II controlled substances. Moreover, many medications that are commonly dispensed to the patients in a home healthcare or hospice setting qualify as Schedule II substances under the Act, thus creating a dilemma for nurses. For example, codeine, hydrocodone, morphine, oxycodone, and hydromorphone are just a few of the regularly prescribed medications characterized as Schedule II controlled substances.
If an individual possesses a physician-provided prescription, then that individual is exempted from prosecution. Thus, patients are shielded under the act. On the other hand, when a home health or hospice nurse picks up such medication for her patient and transports it from the pharmacy to the patient’s home, the issue becomes whether the patient’s prescription provides a defense to the nurse against a charge of possessing a controlled substance. Presently, there is no specific provision in the Act that provides such a defense.
A prescription that is generated for a Schedule II controlled substance to be compounded for direct administration in a patient’s private residence, long-term care facility, or hospice care may be transmitted by facsimile by a prescriber or the prescriber’s agent to the pharmacy providing the home infusion services. Under the Act, delivery is defined as the “actual, constructive, or attempted transfer or possession of a controlled substance, with or without consideration, whether or not there is an agency relationship.” In interpreting these provisions together, one could infer that because the state legislature specifically permits a prescription to be submitted via facsimile for administration in a private residence, it is thus implicit that a nurse or other party may be legally permitted to transport the controlled substance to the patient in need. Nevertheless, it is dangerous to make such inferences under traditional canons of construction; on the contrary, one could argue that because the legislature had the opportunity to specifically allow such conduct but chose not to affirmatively create that right and/or authorization, they therefore must have determined that it would not be best to do so.
Under Illinois Administrative Rules, nurses are permitted to “administer” medications, but not “dispense” such medications. The term administer, under the regulations, is defined as:
the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means to the body of a patient, research subject, or animal (as defined by the Humane Euthanasia in Animal Shelters Act) by:
(1) a practitioner (or, in his or her presence, by his or her authorized agent),
(2) the patient or research subject pursuant to an order, or
(3) a euthanasia technician as defined by the Humane Euthanasia in Animal Shelters Act.
The term dispense, under the regulations, is defined as:
…to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a prescriber, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.
In addition, the Illinois Pharmacy Practices Act provides that only legally licensed pharmacists or physicians may dispense medication. Accordingly, the nurse’s handling of such medication turns on the specific conduct of the nurse with respect to the medication in question; but this does not address the issue of possession of a controlled substance.
Possible Solution: The Nurse Practice Act
The Illinois Nurse Practice Act provides that Advanced Practice Nurses (“APN”) and/or Physician Assistants (“PA”) have the authority to prescribe, carry, and dispense Schedule I, III, IV, or V controlled substances. Under Illinois law, an APN is a certification granted to nurses who have met the qualifications for a “(i) certified nurse midwife (CNM); (ii) certified nurse practitioner (CNP); (iii) certified registered nurse anesthetist (CRNA); or (iv) clinical nurse specialist (CNS) and has been licensed by the Department.” A PA is also required to obtain certain educational certification status. In both instances, the APN and PA must obtain a mid-level practitioner controlled substances license in accordance with Illinois regulations in order to be able to dispense or carry controlled substances. Such license requires that the appropriate application be submitted with the filing fee to the Department of Financial and Professional Regulation.
One of the requirements to obtain a mid-level practitioner controlled substances license is to have the participation of a physician that works directly with the APN or PA. The physician is required to participate and complete a portion of the application provided as notice of prescriptive authority. Once the APN or the PA obtains their license, they are authorized to prescribe and dispense controlled substances only within the scope of the practice of the collaborating physician. If the particular physician is unable to prescribe certain narcotics, then the APN or PA working with the physician is also unable to prescribe such narcotics. Furthermore, the license is only good for medications prescribed from that one physician. If an APN or PA works with more than one physician, each collaborating physician must submit a separate notice of prescriptive authority. In light of these requirements; the fact that many homecare and hospice nurses have relationships with several different physicians; and the fact that few homecare and hospice nurses are APNs, obtaining this mid-level practitioner controlled substances license may be impractical.
In addition to the Illinois mid-level practitioner license, a nurse may also consider a federal mid-level practitioner controlled substances registration licensure, under a program run by the Drug Enforcement Agency (“DEA”). Pursuant to Title 21, Section 1300.01(b28), the federal definition of a mid-level practitioner is “an individual practitioner, other than a physician, dentist, veterinarian, or podiatrist, who is licensed, registered, or otherwise permitted by the United States or the jurisdiction in which he/she practices, to dispense a controlled substance in the course of professional practice.” Under this program, the nurse is permitted to prescribe, carry, and dispense similar controlled substances. Moreover, such licensure would shield nurses from federal prosecution. In order to obtain such a license, the nurse must apply with the DEA’s Office of Diversion Control.
Nurses administering medication must take caution in how they carry out their duties. APNs and PAs have the option to obtain a mid-level practitioner controlled substances license, which permits them to prescribe and dispense certain medications classified as controlled substances. On the other hand, registered nurses (“RNs”) may also administer medication during the course of their duties. However, there is currently a gap with respect to an RN’s possession of a controlled substance on behalf of a patient, and the exceptions pertaining to APNs and PAs, discussed above. The Illinois Controlled Substances Act makes clear that:
. . .it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance. . .
With regards to RNs, there exists no exception to this statute. In light of such an ambiguous gap, practitioners should consider carrying copies of all prescriptions when possessing, delivering, and/or administering controlled substances to their patients, in order to demonstrate their lack of wrongful intent to law enforcement agencies.
While there is currently no legal precedent holding for or against practitioners acting in such a capacity—common sense indicates that the more evidence a practitioner can proffer to show that she was acting in her role as an RN, the more likely she will be found to be in legal possession of the medication. This is one position that may be used as a valid defense in the future. By adding clarity both to the laws and applicable statutory code sections, lawmakers can help ensure that ill citizens who must rely on practitioners to get them their medications can do so without fear.
 See, e.g., Illinois Controlled Substances Act, 720 ILCS 570; Controlled Substances Act, 21 U.S.C. ch. 13 801 et seq.
 720 ILCS 570.
 720 ILCS 570/312 (defining a Schedule II controlled substance as a “. . .narcotic drug listed in Section 206 of this Act; or which contains any quantity of amphetamine or methamphetamine, their salts, optical isomers or salts of optical isomers. . .”); 720 ILCS 570/206.
 720 ILCS 570/206(b)(1).
 Illinois Controlled Substances Act, 720 ILCS 570.
 Illinois Pharmacy Practice Act, 225 ILCS 85.
 Illinois Admin. Code, Title 77, § 3100.85: Application for Mid-Level Practitioner Controlled Substances License, available at http://www.ilga.gov/commission/jcar/admincode/077/077031000000850R.html.
 Illinois Nurse Practice Act, 25 ILCS 65/50-10.
 Illinois Administrative Code, Title 77, § 3100.85: Application for Mid-Level Practitioner Controlled Substances License, available at http://www.ilga.gov/commission/jcar/admincode/077/077031000000850R.html.
 Application for Physician Assistant Mid-Level Practitioner Illinois Controlled Substances License, available at http://www.idfpr.com/Renewals/apply/forms/f1869cs.pdf; Application for Advanced Practice Nurse Mid-Level Practitioner Illinois Controlled Substances License, available at http://www.idfpr.com/Renewals/apply/forms/f1880apn.pdf.
 Application for Physician Assistant Mid-Level Practitioner Illinois Controlled Substances License; Application for Advanced Practice Nurse Mid-Level Practitioner Illinois Controlled Substances License, supra note 13.
 Id. (“The collaborating physician shall submit a notice of prescriptive authority indicating the advance practice nurse [or physician’s assistant] has been delegated prescriptive authority.”).
 Id. (“The collaborating physician may only delegate controlled substances that he or she prescribes.”).
 DEA, Office of Diversion Control, Mid-Level Practitioners Authorization by State, available at http://www.deadiversion.usdoj.gov/drugreg/practioners/.
 Illinois Admin. Code, Title 77, § 3100.85: Application for Mid-Level Practitioner Controlled Substances License, supra note 10.
 Illinois Controlled Substances Act: 720 ILCS 570/401.